J. R. Bailey v. The State, 20 Tex. Ct. App. 68

White, Presiding Judge. It was charged in the indictment that the animal alleged to have been stolen was taken from the possession of the owner, W. H. Perkins. The evidence conclusively established that, at the time of the taking, W. H. Perkins, the owner, had been absent from home two months on business, and had taken his family with him; that, before leaving home, he had placed his cattle in charge of his mother, Mrs. E. J. Perkins, ánd his brother, Ed. Perkins, to look after, feed and care for; that Ed.

Perkins had the exclusive control and management of the cattle, subject to his brother’s orders, and was to look after and feed them. Under these facts, we are of opinion that Mrs. E. J. Perkins and Ed. Perkins were the parties in possession of the animal when taken, and that the indictment should have alleged a taking from their possession and without their consent, or it should have alleged an actual ownership in W. H.'Perkins, and that it was taken from the possession of Mrs. E. J. Perkins and Ed. Perkins, who were holding the same for W. H.

Perkins, and that the taking was without the consent of all the parties. The questions involved are fully discussed and settled in the cases of Bailey v. The State, 18 Texas Ct. App., 426, and Frazier v. The State, 18 Texas Ct. App., 434. [Opinion delivered December 12, 1885.] Because there was a fatal variance between the allegation and the proof of possession, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded.