The first contention of the defendant — that he is entitled to the affirmative charge on account of a variance between the allegations and the proof — has been decided adversely to the defendant in the case of Frank S. Vaughn v. State, ante, p. 35,81 So. 417.
The only other contention of the appellant is that the court committed error in refusing to permit the defendant on the trial to prove that, prior to the employment of the defendant by John Henry Smith and Luke Smith to haul the stolen property, the two Smiths went to the house of the witness, whose business was that of a public drayman, and asked him to come haul a load for them; that this drayman could not do it on account of being sick in bed, and that thereupon they asked where the defendant lived, and then left, going in that direction. What possible relevancy this testimony could have to the issue as to whether the defendant was guilty of larceny or of receiving stolen property is more than this court can comprehend. It is clearly res inter alios acta. It is wholly immaterial whether the two Smiths implicated in the theft attempted to employ another drayman as well as the defendant. Non constat both the defendant and the other drayman might have had a guilty knowledge of the nefarious traffic being carried on by the Smiths, Vaughn et al.
There is no error in the record, and the, judgment is affirmed.
Affirmed. *Page 78