Wallace v. State , 99 Ark. 92 ( 1911 )

Kirby, J.

Appellant was tried and convicted of the crime of burglary in the lower court on the following indictment:

“The Grand Jury of Sebastian County, for the Fort Smith District thereof, in the name .and by the authority of the State of Arkansas, accuse the defendant, Lem Wallace, of the crime of burglar}'-, committed as follows, towit:

“That the said Lem Wallace, in the county, district and State aforesaid, on the 8th day of January, 1911, and during the night time of said day, a certain house there situated and used and occupied by Till Shaw, feloniously did break and enter with the felonious and burglarious intent, the property of the said Till Shaw of the value of $25 being in said house, feloniously and burglariously to steal, take and carry away, against the peace and dignity of the State of Arkansas.”

The testimony tends to show that if a burglary was committed it was by entry of Jim Ward’s saloon on Towson Avenue, Fort Smith, Arkansas, and there was no testimony whatever of a breaking and entry by defendant or those with whom -he was acting “of a certain house * * * used and occupied by Till Shaw.” The Attorney General confesses error because of the variance in the proof. The confession of error is sustained. The variance was fatal. The description of the house as “used and occupied .by Till Shaw” was sufficient, but proof of the breaking and entering of Jim Ward’s saloon, not shown to have been connected in any way with the house used and occupied by Till Shaw, and with which saloon Till Shaw was not shown to have any relation, does not sustain a conviction upon the indictment. Reed v. State, 66 Ark. 110; 6 Cyc. 227; Bishop’s New Criminal Procedure, § 137; Aldridge v. State, 88 Ala. 113, 16 A. S. R. 23; Jones v. State, 77 Miss. 370, 78 A. S. R. 527; Rodgers v. People, 86 N. Y. 360, 40 Am. Rep. 548.

The judgment is reversed, and the cause remanded for a new trial.