S. B. SMITH, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Smith was convicted of larceny of a cow based on an indictment alleging the animal was branded with a "T", but evidence showed the actual cow bore a "Diamond T" brand. The Florida Supreme Court reversed the conviction, finding a fatal variance between the indictment's description and the proof presented at trial.
The variance is fatal and vitiates the conviction. When a brand is alleged as a descriptive element of the animal in the indictment, the proof must correspond with the allegation. A variance between the alleged "T" brand and the proven "Diamond T" brand is material because these are separate and distinct brands recognized in the community as belonging to different owners.
“Indictment for theft of a branded animal need not allege or describe its brand; but, when alleged as descriptive of the animal, the proof must correspond with the allegation, and a variance between the allegation and the proof is material and vitiates a conviction.”
Establishes the controlling legal standard from Allen v. State that proof must match allegations regarding brand descriptions in larceny indictments.
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Join FLexlaw to unlock all legal intelligenceSmith was indicted for stealing a cow belonging to O. L. Feaster, described in the indictment as marked with an under-slope in each ear and branded "T…
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Shackleford, J.
An indictment was returned against S. B." Smith charging him with the larceny of a cow, the description of which is alleged therein as follows: “One cow marked under-slope in each ear; branded £T’ — a better description of which said animal is to the grand jurors unknown of the property of O.
L. Feaster.” The defendant was convicted and seeks relief here. Several errors are assigned, but we shall treat only such as aré necessary for a proper disposition of the case. It is contended that there is a fatal variance between the allegation of the indictment and the proofs adduced, in that the animal charged to have been stolen by the defendant was alleged in the indictment to have been branded “T,” while the uncontradicted evidence showed that the brand found upon the hide of the animal which was found and identified by the owner as being that of the cow which he had stolen was branded “a diamond with a T in the middle,” known as the “Diamond T brand.” The evidence further established that these two brands, “T” and “Diamond. T,” were separate and distinct brands, well-known and recognized in the neighborhood as belonging to different owners of cattle. We are of the opinion that this contention must be sustained. The case of Allen v. State, 8 Tex. App. 360, is well in point, wherein it was held: “Indictment for theft of a branded animal need not allege or describe its brand; but, when alleged as descriptive of the animal, the proof must correspond with the allegation, and a variance between the allegation and the proof is material and vitiates a conviction.” Also see Crenshaw v. State, 64 Ga. 449; Robertson v. State, 97 Ga. 206, 22 S.
E. Rep. 974; State v. Noble, 15 Me. 476; State v. Jackson, 30 Me.
29. Also see our own holding in Mobley v. State, 57 Fla. 22, 49 South. Rep. 941, 17 Ann. Cas. 735.
The judgment is reversed.
Browne, C. J., and Taylor, Whitfield and Ellis, J. J., CONCUR.
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Citator
Cited By
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Erwin Sessions v. State, 82 Fla. 248 (Fla. 1921)…941. The consequences of a fatal variance between the allegata and probata cannot be avoided by holding that the specific description may be regarded as “surplusage.” This court has recently passed on that very point, in the ease of Smith v. State, 74 Fla. 75, 76 South. Rep. 774. In that case the indictment described a cow that was the subject of larceny, as having been branded “T, ” and the evidence showed that the brand found upon the hide of the animal stolen, was “Diamond T.” This court quoted approv…
Authorities Cited
- Mobley v. State, 57 Fla. 22 (Fla. 1909)