Opinion
No. 20564.
Delivered November 8, 1939.
1. — Removing Mortgaged Property Out of State — Evidence.
Where the indictment, charging the removal of mortgaged property out of the State, alleged a mortgage to a named individual, and the copy of the instrument relied on and offered in evidence, over the objection of the defendant, showed a mortgage of an automobile to a certain company, there was a variance between the indictment and the proof, and the trial court committed reversible error in admitting in evidence mortgage to company.
Appeal from District Court of Jones County. Hon. W. R. Chapman, Judge.
Appeal from conviction for removing mortgaged property out of the State; penalty, confinement in penitentiary for two years. Reversed and remanded.
The opinion states the case.
Stinson, Hair, Brooks Duke, of Abilene, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The appellant was charged with the offense of removing mortgaged property out of the State. His punishment was fixed at two years in the penitentiary.
The indictment alleges a mortgage to W. J. Fulwiler. The copy of the instrument relied upon was offered in evidence over the objection of the appellant. It showed a mortgage of an automobile to the Security Investment Company.
The introduction of the mortgage, timely objected to, with a proper bill of exception, brings the matter before this court for review. There was a variance between the indictment and the proof, and the court committed error in admitting the mortgage to the Security Investment Company, which requires that this cause be reversed. See Borger v. State, 70 S.W.2d 195.
There are other questions in the appeal which, in view of this holding, are not discussed as they will, in all probability, not arise again in this case.
The judgment is reversed and the cause remanded.