Appellant made the point in his brief and renews it in his motion for rehearing, that there was a variance in the allegation and proof in that the possession of the property was charged in Martin Grant and the proof showed it in Lena Grant.
The facts disclose that Martin Grant and Lena Grant were husband and wife, were living together, and at their home there was a gathering of negroes; that they owned a sum of money which was in a pocketbook, which pocketbook was carried in the bosom of Lena Grant, and on the occasion in question was dropped by her on the floor of the dwelling house in which she and her husband resided and at which both were present.
It is the contention of appellant that the proof shows absolutely that the ownership of the property was in the community of Lena Grant and her husband, Martin but he insists that the possession was absolutely in Lena Grant.
She testified that the money belonged to her and her husband; that she had been keeping it for some time, probably a month; that she spent a dollar or two at a time without asking her husband, that when he wanted it he could get it from her. She had the custody and control of the money, could do what she pleased with it without asking her husband. Martin Grant gave in substance the same evidence.
The rule, as we understand it, is that where the property stolen is community property and the spouses are living together, the ownership in a charge of theft is properly laid in the husband. Jones v. State, 47 Tex.Crim. Rep.; Ware v. State, 2 Texas Crim. App., 547; Lucas v. State, 36 Tex. Crim. 397; Smith v. State, 53 Tex.Crim. Rep.. It may, under certain circumstances be permissible to lay the ownership in the wife but the law does not require it. Lane v. State,69 Tex. Crim. 68.
Even granting the correctness of appellant's contention that the property having been lost at a gathering in the house of Grant and wife is to be treated as having been lost in a public place, the allegation of ownership in the husband would not, on the facts developed, disclose a variance. "The ownership as well as the constructive possession of lost property is in the real owner." Martin v. State, 44 Tex.Crim. Rep..
The evidence touching the reasonableness and probable truth of appellant's explanation that the property was claimed by a "long, tall, stray nigger," and delivered to him by appellant, was in a large degree circumstantial and much of it conflicting. There was testimony justifying the conclusion that appellant knew the property was lost, and that its owner could probably be found, that she made no effort to do so, but discovering immediately after she picked it up that the pocketbook *Page 552 contained money she formed and executed the purpose to keep and appropriate the money.
The evidence presented a case for the jury, and the verdict guided by proper charge and approved by the trial judge is binding on this court. Roberts v. State, 60 Tex.Crim. Rep., and cases listed in Branch's Ann. P.C., sec. 2464.
The motion is overruled.
Overruled.