Under indictment charging the theft of a dress over the value of $50, the appellant was convicted of a misdemeanor theft, and punishment assessed at imprisonment in the county jail for a term of four months.
The particular property appellant is charged with having stolen was one dress. This property was found in the possession of the appellant, and an accomplice also testified in the case to the effect that appellant stole said dress from said store while she was with her.
The appellant testified, denying the theft of said dress, and introduced evidence through her husband and other witnesses to the effect that the husband had purchased the dress in question during this sale as a gift for his wife, paying cash therefor.
By a bill of exception properly presented, the appellant contends that the court committed reversible error in failing to give the defendant's requested instruction for a verdict of not guilty because there was a variance in the proof and in the allegation of the indictment. The first count in the indictment under which the appellant was convicted alleged the ownership and possession of the property to be in one Marvin Smith. It was claimed in appellant's motion in arrest of judgment and in the motion for new trial that the proof did not show that said Marvin Smith was the owner of said property and that, at the time of the alleged theft, possession of said dress was not shown to have been in the said Marvin Smith. The correctness of this contention must necessarily depend on the facts offered in evidence in regard to this phase of the case.
The witness, Marvin Smith, testified that he was the manager for the W. B. McClurkan Co., which operated a department store selling clothing and notions in the city of Wichita Falls, and that a special sale was put on in said store during the month of January, 1931, and that during that time extra help was employed so that he had working under him about fifty people; that he had the custody and control of the store and everything in it, and that no one had his permission or consent to take the dress without paying for it and appropriate it to their own use and benefit. He further testified that the lady who was in charge *Page 576 of the ladies' ready to wear department in said store came to him and told him that she was short; that she had lost some dresses, and that she described the dresses to him, and he made an investigation regarding same. He testified that the lady he referred to was Miss Richardson; that she was in charge of the ladies' ready to wear department and had charge of that department.
Myrtle Richardson testified that she was employed by the W. B. McClurkan Co. and was in charge of the ladies' ready to wear department; that she had charge of that department during January, 1931; that during the sale put on at that time the dress in question was stolen from her department. She further testified that she worked under Mr. Marvin Smith who was the manager and head man, and that she did not give her consent to anyone to take the dress without paying for it.
The question before us is whether or not the proof adduced upon the trial as to whether said Marvin Smith, alleged to have been in possession of the property stolen, had the actual control, care, and management of the property at the time it was stolen. We do not believe that the facts constitute a variance between the allegations in the indictment and the evidence in regard to the ownership. The evidence shows that the said Smith was in charge of the entire department store as general manager, and, while there were minor departments in charge of subordinate clerks, the said Smith is shown to have had control and management of the entire business, including the heads of the departments, who were under him and subject to his orders. The holding in the case of King v. State (Texas Crim. App.), 100 S.W. 387, which opinion was written by Judge Davidson, supports this holding.
The appellant, by bills of exception, complains of the refusal of the court to instruct the jury to disregard certain arguments of the district attorney. In regard to said bills of exception, the trial court qualified same to show the argument of the district attorney complained of. As qualified, no reversible error is shown.
No reversible error appearing, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.