Opinion
No. 25283.
November 14, 1951.
Appeal from the District Court of Wheeler County.
Grady Hazelwood, Amarillo, for appellant.
Tom Braley, Dist. Atty., Pampa, and George P. Blackburn, State's Atty., Austin, for the State.
Appellant was convicted on an indictment charging removal of mortgaged property out of Wheeler County and was assessed two years in the penitentiary.
On original submission the appeal was dismissed because of a defective record. Tex.Cr.App., 239 S.W.2d 395. Correction has now been made and the appeal is considered on its merits.
It will be necessary to discuss only one of the errors pointed out by the appeal. The indictment alleges the injured party to be the 'Farmers and Merchants Bank of Shamrock, Texas.' There is no allegation that it is a corporation. The proof shows that the injured party is an incorporated bank.
There is a further variance between the allegation and the proof in that the evidence introduced by the state shows the name of the bank to be 'Farmers and Merchants State Bank of Shamrock, Texas.' Williams v. State, 118 Tex.Crim. R., 39 S.W.2d 79; Reese v. State, 119 Tex.Crim. R., 44 S.W.2d 679; and Nichols v. State, 136 Tex.Crim. R., 123 S.W.2d 672.
Because of the variance between the allegation and the proof the judgment of the trial court is reversed and the cause is remanded.