The only count submitted to the jury alleged ownership and possession in Wood. Appellant insists that a variance occurs, claiming that the evidence shows possession to have been in Mrs. Lewallen. A review of the facts does not lead us to the conclusion that any such variance appears. The stolen property was left by its owner Wood in and around his shop, with instructions to Mrs. Lewallen and her son to look *Page 180 after it during the owner's temporary absence, and not let anyone take the property. Appellant admits in his own testimony that he knew Mrs. Lewallen had no authority to dispose of the property because she told him so, and referred him to the owner, Mr. Wood. The facts show that Mrs. Lewallen was perhaps the mere custodian of the property, but with no such care, control and management as constituted her a special owner. See 41 Tex. Jur., page 47, Sec. 32, and Branch's Ann. Texas P. C., page 1323. Many illustrative cases are cited in each text referred to.
Appellant's defense was that he bought the property from a son of Mrs. Lewallen. This defensive issue was pertinently submitted and the jury found against appellant.
Believing the case was properly disposed of originally, appellant's motion for rehearing is overruled.