Smith v. State

72 So. 929, 112 Miss. 248

Opinion

Pee Curiam.

ON SUGGESTION OE ERROR.

Appellant was indicted and convicted of stealing a cow, alleged in the indictment to have been the property of Ethel, Matthew, John, and Perry Tonng. The evidence discloses that the cow, when stolen, was the property of “old man” Perry Tonng, who died after it was stolen and before the finding of the indictment, leaving as his heirs at law his children, the persons alleged in the indictment to be the owners of the cow. No objection was made to this variance between the proof and the indictment, bnt two instructions were granted appellant charging the jury that ownership must be proven as laid in the indictment. If appellant desired to avail himself of this variance he should have objected specifically on that ground, so that the attention of the court and opposing counsel might be called thereto, and, having failed so to do, he cannot now ■avail himself thereof, for the reason, that had such an objection been made, the indictment could have been amended to correspond with the proof. Section 1508, Mississippi Code 1906; Foster v. State, 52 Miss. 695.

Affirmed.