Green v. State , 158 Tex. Crim. 430 ( 1953 )

MORRISON, Judge.

The offense is the fraudulent disposition of mortgaged property; the punishment, two years.

The indictment alleged that the mortgaged property was sold to one Lavon Hindman.

The proof showed that the sale was made to one D. L. Owen, who gave his personal check in payment therefor, and that Hindman had nothing whatsoever to do with the transaction. It was shown that some loose type of partnership existed between Owen and Hindman, who were engaged in the used car business in which each bought and sold on his own and then divided the profits. It was not shown that Hindman ever exercised any care, control or management over the pickup truck purchased from the appellant. Owen himself later resold the truck to one Gaines.

The proof in this case would have sustained an allegation that the sale was made to Owen whether he purchased it individually or for a partnership, but will not support an allegation that the sale was made to Hindman.

Because of the fatal variance between the allegation and the proof, the judgment will be reversed and the cause remanded.