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8 Tex. Ct. App. 360

Allen v. State

Court of Appeals of Texas

Decided July 1, 1880

Court of Appeals of Texas · decided 1880-07-01

Tried below before the Hon. L. W. Moore. Appellant was found guilty of the theft of a heifer belonging to one Ancly Foster, and his punishment was assessed at five years in the penitentiary. The brand as delineated in the indictment was an encircled cross, and this was found to be the brand of Andy Foster.

Decided 1880-07-01

White, P. J.

¶1The allegation of the indictment as to the brand upon the stolen animal and the brand proven upon the hide of the animal found in defendant’s possession did not correspond, and the variance was fatal. It is unnecessary that the brand should be averred in the indictment as part of the descriptive identity of a stolen animal, but when so averred it must, like any other descriptive matter of identity, be strictly proven as alleged. Warrington v. The State, 1 Texas Ct. App. 168; Ranjel v. The State, 1 Texas Ct. App. 461; Rose v. The State, 1 Texas Ct. App. 401; Hill v. The State, 41 Texas, 257.

¶2The judgment is reversed and the cause remanded.

¶3Reversed and remanded.

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