I specially concur with reference to that assignment of error which contends that there is a fatal variance between the description of the animal in the indictment and the proof. There is no doubt that the earmarks of the animal as alleged and the marks which were proved were at variance. The question is whether, under the whole record, such variance demands a reversal. This presents a very interesting question; one as to which members of this court and of the Supreme Court have seen fit, in applying the rule laid down in former decisions, to give expression of disapproval. The decisions thus referred to are binding, provided, of *Page 564 course, the facts of a particular case cast it under such previous rule. The rulings are as follows: Youngblood v.State, 40 Ga. App. 514 (150 S.E. 457); Wright v. State,52 Ga. App. 202 (182 S.E. 862); Mosely v. State, 52 Ga. App. 650 (184 S.E. 364); Watson v. State, 64 Ga. 61 (2);Crenshaw v. State, 64 Ga. 449; Wiley v. State, 74 Ga. 840;Berry v. State, 92 Ga. 47 (2) (17 S.E. 1006); Haupt v. State, 108 Ga. 53 (2) (34 S.E. 313, 75 Am. St. Rep. 19);Johnson v. State, 119 Ga. 257 (2) (45 S.E. 960);McLendon v. State, 121 Ga. 158 (48 S.E. 902); Smith v.State, 185 Ga. 365 (195 S.E. 144). There are other decisions of both the Supreme Court and this court following the rule announced in the cases above cited.
In Wright v. State, supra, the late Judge Guerry, concurring specially, made the following statement: "Except that I am constrained by the holding of prior decisions of the Supreme Court and this court, I would merely mark myself dissenting. To my mind, however, when there was never a question about the identity of the car alleged to have been the subject-matter of the theft; the prosecutor having but one car and it a Plymouth sedan 1934 model, gun-metal in color, motor number 5369, it is immaterial whether it be P. E. 5369 as alleged or P. C. 5369 as testified by the witness. There is not the slightest doubt in the mind of a juror, or the court, that the car alleged to have been stolen and the car testified about was one and the same car. The application of the principle in this case reduces the rule to an absurdity, and brings ridicule upon the courts. It is true that the material allege and probata must conform, but it should not be applied in a case where the difference is only the same as between tweedledum and tweedledee. Whenever there can be raised the slightest question as to the identity of the article described as the subject-matter of a theft it is proper to apply the strict letter of the rule. The rule, as applied in this case, ceases to be a rule of reason, and should therefore cease to be a rule of law. However, I am constrained to follow the strict and literal language of the opinions cited, and concur in the judgment of reversal by reason thereof."
In Smith v. State, supra, the majority opinion reviewed a number of cases from the Supreme Court and this court on the question, Justice Jenkins specially concurring and Justice Bell dissenting. Justice Jenkins in his special concurrence said: "If, as *Page 565 recognized in the majority opinion, the purpose of the indictment is to put the defendant on notice of the particular offense of which he is charged so that he may prepare his defense, and to preserve an unerring record of the proceedings as a protection against another indictment on the same charge, and if the indictment and the proved allegations are sufficient to do both of these things, it would not seem that the mere fact that the indictment may contain some unproved additional descriptive averment, `unnecessarily minute,' made `with unnecessary particularity,' which does not constitute `an essential element of the offense' and is `immaterial,' and which therefore serves no purpose whatever in meeting either of the two stated requirements of a valid indictment, could be taken to avoid a conviction thereunder. All such `immaterial' and `unnecessary' averments would seem to amount to nothing more than mere surplus age; and if so, I am unable to follow the process of reasoning which holds that the mere inclusion of any such trivial, immaterial, and useless thing causes it to thereby become vital and material to an otherwise full, clear, and valid indictment. If the averment be one which it is useless to state, it remains useless even if stated. An immaterial thing, so long as in a changing world it remains in fact immaterial, is not changed in quality by its mere statement. Wishes can not be made into horses by their mere expression. If it should be shown that the inclusion of some so-called immaterial fact could work harm to the defendant, then it would follow that the fact was not immaterial. The `immaterial' neither helps nor harms. For these reasons, I think that the mere omission to prove some trivial, immaterial, additional fact, which has been set forth in an otherwise clear, full, and valid indictment, should not operate to set free one who has been tried and convicted thereunder. This special concurrence suggests a modification of those decisions avoiding convictions by reason of the omission to prove unnecessary and immaterial averments, but does not deal with cases where the allege and probata are in positive variance." The dissenting opinion of Justice Bell is interesting. He observed: "He admitted his presence at the time and place of the alleged offense, and, so far as here material, merely denied `that he had any chickens,' as claimed by the prosecutor. If he had made no statement whatever, it might be that he should have been acquitted because of the failure of the State to prove the offense *Page 566 as charged in the indictment." I have carefully examined all of the cases cited by able counsel for plaintiff in error and many more decisions on the question. In view of the facts of the case before us I am clear that the principle discussed and prevailing does not control the case at bar.
The indictment charged that the animal described was owned by Fred Davis. The evidence showed that the wife of the owner had authority to sell and had sold cattle from the herd of her husband. The evidence further showed beyond peradventure that the defendant was found in possession of the animal described in the indictment, having carried it from its range in Baker County, Georgia, to Tallahassee, Florida, and was at the time apprehended in the act of selling the animal in Tallahassee. Aside from the variance between the earmarks described in the indictment and those shown by the proof, the animal was, by other proof, overwhelmingly identified as the one owned by Fred Davis and described in the indictment; and was shown to be the animal which the defendant transported to Tallahassee and which was there seized by the sheriff and returned to the owner. The defendant in his statement admitted that the animal described in the indictment was the one he had transported to Tallahassee and which was there taken from him and returned to Davis in Baker County. He claimed that he had purchased it from Mrs. Davis, the wife of the owner. Under this admission the only issue before the jury was whether or not the defendant had purchased the animal from the owner, Fred Davis, through the wife, Mrs. Fred Davis. The state introduced evidence that the animal had not been sold to the defendant, but that he had stolen it about midnight, driving it from its pasture, loading it on a truck, and carrying it to Tallahassee. The jury did not believe that the defendant had purchased the animal. From such statement of facts and the contentions of the defendant in his statement, it is the opinion of the writer that the defendant waived any variance between the proof and the allegation as to the description of the animal. It would be a puerile mockery of judicial procedure to hold otherwise.