James Briggs v. The State, 20 Tex. Ct. App. 106

White, Presiding Judge. It was alleged in the indictment that the horse stolen was the property of, and taken from the possession of, M. Webb. The evidence showed that M. Webb was a widow; that the horse was the property of herself and her children by a former husband; that Mrs. Webb, if not a lunatic, was in such condition of mind and body as that, for several years, she had not been able to attend, and had not attended, to any of her business affairs. She lived with W. A.

Sanderson, her father, who attended to her business, was the guardian of her children, and had the care, custody and control of the horse in question, and Mrs. Webb did not have the control of the horse or any of her property. Under these facts, the indictment should have alleged the property to have been in and taken from the possession of W. A. Sanderson (Bailey v. The State, 18 Texas Ct. App., 426; Frazier v. The State, 18 Texas. Ct. App., 434, and Bailey v. The State, decided at the present term, ante, p. 68), or the allegation of ownership should have charged the horse to be the property of Mrs. M.

Webb and her children, and that it was taken from the possession of Sander-son, who was holding the same for them. There is fatal variance between the allegation and proof as to possession. The venue of the offense is not affirmatively and directly proven. Reversed and remanded.