Atkinson, Presiding Justice.
In 14 R. C. L. 206, § 50, it is [367] said: “It is the well-established general rule that to make a variance between allegations in an indictment or information and the proof fatal, it must be material and prejudicial; and this rule is emphasized in some jurisdictions by statute. The charge of variance, to be sustained, must have reference to some matter essential to the indictment or information, and, in general, the descriptive averments of the mode in which an offense has been committed are not required to be strictly proved, if in substance the evidence supports the allegations, though it has been held that where a person or thing to be mentioned in an indictment is described with circumstances of more particularity than is requisite, those circumstances must be proved as alleged, otherwise it would not appear that the person or thing is the same described.” In 8 E. C. L. 143, § 128, it is said: “The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.” In 22 En-cyclopaedia of Pleading and Practice, 532, 557, it is said: “The rule that the allegations and the proofs must not be variant must be observed in criminal proceedings no less than in civil actions at law and suits in equity, or the defendant will be entitled to an acquittal or will, if the fault be on his side, fail in his defense. . . The rule that the allegations and proof must correspond is intended to answer the double purpose of distinctly and specifically advising the opposite party of what he is called upon to answer, so as to enable him properly to make out his case and to prevent his being taken by surprise in the testimony at the trial, and of preserving an unerring record of the cause of action as a protection against another proceeding based upon the same cause.” In 16 C. J. 243, § 380, it is said: “The effect of a material variance between the allegations of the indictment and the proof is to entitle defendant to an acquittal on the particular indictment, but he is still liable to be tried for his crime.”
Cases showing a positive variance between the proof and the description of the stolen goods alleged in the indictment, such as Crenshaw v. State, 64 Ga. 449, where an indictment charged the stealing of a hog marked by “a swallow fork in the right ear and a smooth crop in the left ear,” and the description proved at the trial [368] showed the left ear bore the swallow fork and the right ear the smooth crop, will be omitted, because the instant case is not of that character. It is a case of omission of evidence to prove a material descriptive averment alleged in the accusation. In Watson v. State, 64 Ga. 61 (2), this court held: “Though the indictment need not allege that the money fraudulently converted by the defendant was lawful currency of the United States, under section 4424 of the Code, yet, if alleged, the description must be proved as laid; and therefore proof that money, without more, was so converted will not support a conviction under such an indictment.” In Hardy v. State, 112 Ga. 18 (37 S. E. 95), it was held: “Where the indictment charged the accused with the larceny of a 'fawn-colored Jersey heifer about eighteen months old/ and the proof showed the larceny of a fawn-colored heifer, this was a fatal variance.” In McLendon v. State, 121 Ga. 158 (48 S. E. 902), it was held: “In order to sustain a conviction of larceny, the evidence must make out the description of the stolen property as laid in the indictment or accusation, although such description may have been unnecessarily minute.55 In the opinion it was said: “The property alleged to have been stolen was described in the accusation as 'one box of Sweep Stakes tobacco, five lbs. Dukes Mixture smoking tobacco, and one 19-lb. sack Capitola flour.5 . . The evidence showed the theft of some flour and tobacco, but there was absolutely nothing to show that the goods were of the brands or kinds set out in the accusation. We think it clear that the State failed to make out its case. It is essential to an indictment or accusation for larceny that the stolen goods be described with certainty. It may be that the accusation in the present case described them with unnecessary particularity, but, this having been done, the cáse should have been proved as laid. 'If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other.5 1 Bish. New Grim. Proc. § 485. See also Clark, Grim. Proc. 182." where the indictment charged the accused “killed an infant male child, the child of Dovie Cochran, whose name is unknown to the grand jury,” and on the trial there was no evidence as to the sex of the child alleged to have been killed, the failure to prove ¡the identity, of the child as laid in the indict[369] ment was held cause for a reversal. The foregoing views were several times expressed in Gully v. State, 116 Ga. 527 (42 S. E. 790); though the question there under consideration was upon a special plea of former acquittal, and not, as in the present case, whether the descriptive averments in the accusation were supported by the evidence.
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Atkinson, Presiding Justice.
In 14 R. C. L. 206, § 50, it is [367] said: “It is the well-established general rule that to make a variance between allegations in an indictment or information and the proof fatal, it must be material and prejudicial; and this rule is emphasized in some jurisdictions by statute. The charge of variance, to be sustained, must have reference to some matter essential to the indictment or information, and, in general, the descriptive averments of the mode in which an offense has been committed are not required to be strictly proved, if in substance the evidence supports the allegations, though it has been held that where a person or thing to be mentioned in an indictment is described with circumstances of more particularity than is requisite, those circumstances must be proved as alleged, otherwise it would not appear that the person or thing is the same described.” In 8 E. C. L. 143, § 128, it is said: “The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.” In 22 En-cyclopaedia of Pleading and Practice, 532, 557, it is said: “The rule that the allegations and the proofs must not be variant must be observed in criminal proceedings no less than in civil actions at law and suits in equity, or the defendant will be entitled to an acquittal or will, if the fault be on his side, fail in his defense. . . The rule that the allegations and proof must correspond is intended to answer the double purpose of distinctly and specifically advising the opposite party of what he is called upon to answer, so as to enable him properly to make out his case and to prevent his being taken by surprise in the testimony at the trial, and of preserving an unerring record of the cause of action as a protection against another proceeding based upon the same cause.” In 16 C. J. 243, § 380, it is said: “The effect of a material variance between the allegations of the indictment and the proof is to entitle defendant to an acquittal on the particular indictment, but he is still liable to be tried for his crime.”
Cases showing a positive variance between the proof and the description of the stolen goods alleged in the indictment, such as Crenshaw v. State, 64 Ga. 449, where an indictment charged the stealing of a hog marked by “a swallow fork in the right ear and a smooth crop in the left ear,” and the description proved at the trial [368] showed the left ear bore the swallow fork and the right ear the smooth crop, will be omitted, because the instant case is not of that character. It is a case of omission of evidence to prove a material descriptive averment alleged in the accusation. In Watson v. State, 64 Ga. 61 (2), this court held: “Though the indictment need not allege that the money fraudulently converted by the defendant was lawful currency of the United States, under section 4424 of the Code, yet, if alleged, the description must be proved as laid; and therefore proof that money, without more, was so converted will not support a conviction under such an indictment.” In Hardy v. State, 112 Ga. 18 (37 S. E. 95), it was held: “Where the indictment charged the accused with the larceny of a 'fawn-colored Jersey heifer about eighteen months old/ and the proof showed the larceny of a fawn-colored heifer, this was a fatal variance.” In McLendon v. State, 121 Ga. 158 (48 S. E. 902), it was held: “In order to sustain a conviction of larceny, the evidence must make out the description of the stolen property as laid in the indictment or accusation, although such description may have been unnecessarily minute.55 In the opinion it was said: “The property alleged to have been stolen was described in the accusation as 'one box of Sweep Stakes tobacco, five lbs. Dukes Mixture smoking tobacco, and one 19-lb. sack Capitola flour.5 . . The evidence showed the theft of some flour and tobacco, but there was absolutely nothing to show that the goods were of the brands or kinds set out in the accusation. We think it clear that the State failed to make out its case. It is essential to an indictment or accusation for larceny that the stolen goods be described with certainty. It may be that the accusation in the present case described them with unnecessary particularity, but, this having been done, the cáse should have been proved as laid. 'If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other.5 1 Bish. New Grim. Proc. § 485. See also Clark, Grim. Proc. 182." where the indictment charged the accused “killed an infant male child, the child of Dovie Cochran, whose name is unknown to the grand jury,” and on the trial there was no evidence as to the sex of the child alleged to have been killed, the failure to prove ¡the identity, of the child as laid in the indict[369] ment was held cause for a reversal. The foregoing views were several times expressed in Gully v. State, 116 Ga. 527 (42 S. E. 790); though the question there under consideration was upon a special plea of former acquittal, and not, as in the present case, whether the descriptive averments in the accusation were supported by the evidence.
In Moore v. State, 13 Ga. App. 15 (78 S. E. 772), it was held: “A conviction of larceny of property described in the indictment as ‘one set of single black-leather buggy harness’ is not supported by proof of the larceny of a set of harness not in any way identified in the evidence as being either black in color or made of leather. The fact that the prosecutor identified the harness found by him in the possession of the accused as the harness he had lost could not serve to identify it as the harness described in the indictment, in the absence of testimony indicating that the harness lost and recovered was black leather buggy harness.” In Southern Express Co. v. State, 23 Ga. App. 67 (2) (97 S. E. 550), it was held: “Although it may not be necessary, in an accusation based upon the above-mentioned section, to name the agent of the express company who delivered the liquor, yet when the name is alleged it becomes ‘descriptive of the identity of that which is legally essential to the claim or charge,’ and can not be rejected as surplusage, but must be proved as alleged.” In Simpson v. State, 35 Ga. App. 592 (134 S. E. 328), where the indictment charged the accused with the offense of larceny from the house, alleging that defendants fraudulently and privately took and carried away 200 bushels of “short staple cottonseed,” and on the trial the State failed to prove that the seed alleged to have been stolen were “short staple,” such failure was held a fatal variance. In Hightower v. State, 39 Ga. App. 674 (2) (148 S. E. 300), it was held: “If the prosecutor states the offense with unnecessary particularity, he will be bound by that statement and must prove it as laid.” In Youngblood v. State, 40 Ga. App. 514 (150 S. E. 457), where the indictment charged the accused with breaking and entering a railroad freight-car with intent to steal, and described the car as “marked ‘Frisco No. 130476,’” and there was no evidence that the car referred to in the testimony at the trial as the car which was broken and entered was marked “Frisco,” the verdict of guilty was unauthorized. In Wright v. State, 52 Ga. App. 202 (182 S. [370] E. 862), where the indictment charged the larceny of “one certain automobile sedan, Plymouth make, 1934 model, motor No. P. E. 5369, gun-metal color, the . . property of Miss Johnnie Boberts,” and the evidence showed the automobile was a Plymouth sedan of gun-metal color, motor number P. Q. 5369, and the property of Miss Johnnie Boberts, this was held to be a fatal variance. Applying the foregoing principles, the charge made in the accusation of larceny of two chickens, one described as “1 white ply-mouth rock pullet” and the other “1 dark-barred plymouth rock pullet,” is not supported by proof of larceny of two chickens one of them being “a dominecker” and the other “a white-barred rock,” there being no proof of alleged sex of the chickens. Neither would such proof and additional testimony of the prosecutor that he saw defendant “pick up two chickens” and place one under each side of his coat, and upon being accosted he “threw up his hands and the chickens fell from under his coat,” support'the charge. Comparing the allegations with the evidence, there was such variance between the allegations and proof as to render the conviction illegal and demand a new trial. The foregoing sufficiently answers the question propounded by the Court of Appeals.
All the Justices concur, except Bell, Justice, who dissents.