Opinion
8 Div. 726.
February 21, 1939. Rehearing Denied April 4, 1939.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Early McWhorter was convicted of petit larceny, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in McWhorter v. State, 237 Ala. 598, 188 So. 269.
Claud D. Scruggs, of Guntersville, for appellant.
The particular kind of property specifically described in an indictment for larceny must be proved as laid. Failure of the evidence to correctly describe the property entitles defendant to the affirmative charge. West v. State, 168 Ala. 1, 53 So. 277; Morris v. State, 97 Ala. 82, 12 So. 276; Pfister v. State, 84 Ala. 432, 4 So. 395. The defendant being charged with the larceny of two hens and the evidence showing only the loss of two chickens, there was a variance entitling defendant to the affirmative charge.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
Although there may, in fact, be a variance between the allegations and the proof, if the variance does not materially injure the appellant in his substantial rights the cause will not be reversed. Brannon v. State, 26 Ala. App. 291, 160 So. 726; Washington v. State, 58 Ala. 355; Parker v. State, 39 Ala. 365; Lavender v. State, 60 Ala. 60. Description of the sex of the chickens stolen was not material; it is not necessary to allege the sex of an animal in charging larceny or any other public offense in reference to such animal. Brannon v. State, supra. Where part of an indictment is surplusage, not essential and having no legal effect, proof thereof or absence of proof could not affect the indictment. McGehee v. State, 52 Ala. 224; Matthews v. State, 15 Ala. App. 670, 74 So. 759. An indictment charging the theft of chickens is supported by proof of the theft of hens. 36 C.J. 855, § 385; Williamson v. State, 28 Ala. App. 92, 179 So. 398.
The defendant was charged by affidavit with having feloniously taken and carried away two hens, of the value of one dollar; the personal property of Loyd Miller. The defendant was convicted in the County Court, from which judgment he appealed to the Circuit Court, where he was again convicted.
The appellant insists that there was a variance between the allegations and the proof, in that the defendant was charged with feloniously taking two hens; whereas, the evidence shows that he took two chickens.
Our attention is directed to the case of West v. State, 168 Ala. 1, 53 So. 277, wherein our Supreme Court held that a conviction could not be had on proof that the defendant had stolen eleven hides, when the indictment charged the felonious taking of eleven cow hides. The West case, supra, presents a very different question. In that case, as is pointed out, the hides may have been from other animals other than cows. If the hides had been calf hides or steer hides, the conclusion of the Supreme Court, doubtless, would have been different.
In the instant case the defendant is charged with feloniously taking two hens. The proof, on the part of the State, tends to prove that he feloniously took and carried away two chickens. This is no variance; a chicken is a hen, and a hen is a chicken.
The affirmative charge, therefore, was properly refused.
We note the excessive Cost Bill referred to in appellant's brief. However, this court is powerless to reduce the amount. The Cost Bill is made up of items fixed by the Legislature, and if relief in the future is to be had, it must come from the legislative body.
We find no error in the record, and the judgment is affirmed.
Affirmed.