Defendant was arrested with hands, clothes and shoes freshly bloodied, as he attempted to run from a barn where three hogs, belonging to another, had just been surreptitiously butchered; and he was convicted and sentenced for their larceny. He contends that the evidence was insufficient to convict him, and that no asportation of the hogs was proved.
Defendant's admitted explanations to the arresting officer of his presence at the barn, first, that he was just "going through that way", and later, that he "came by there hunting" (he had no gun), and his explanation to the jury of his bloody condition, when arrested, that he had helped his father kill hogs that day (four hours before his arrest), are inadequate; and while the evidence of his guilt is circumstantial, the circumstances, in our opinion, sustain the verdict.
The hogs were found lying together, closely side by side, with entrails removed. That situation could not reasonably have existed unless the hogs had been shifted after they were killed. The removal of property from the *Page 312 place it occupies, even "a hair's breadth", with intent to steal, will complete the offense of simple larceny.State v. Chambers, 22 W. Va. 779, 46 Am. Rep. 550.
The indictment described the hogs as one red Duroc Jersey hog and two Black Poland China hogs. The proof was simply that one was a red hog and the other two were black hogs. The ancient rule requiring that the description of property stolen be proven in the terms of the indictment was designed to prevent the accused from being misled or subjected to second jeopardy for the same offense. Here, defendant testified that after his arrest, he saw in the barn the same three slaughtered hogs which were described at the trial by witnesses for the state. Both he and the state understood fully at the trial that he was accused of and was being tried for the larceny of those identical hogs, irrespective of their genealogy. He was not misled, nor can be he successfully impleaded again for the larceny of the red hog and the two black hogs which were slaughtered in the barn. We cannot see that he is prejudiced in any manner because the state failed to show that the red hog was of a breed known as Duroc Jersey and the two black hogs of a breed known as Poland China. The tendency of modern courts is to ignore a variance between allegation and proof unless the variance is material. "Variances are regarded as material in criminal cases only when they mislead the defendant in making his defense, and may expose him to the danger of being again put in jeopardy for the same offense." 22 Ency. Pl. and Pr. 551. Accord: Cannon v. Commonwealth, 243 Ky. 302,47 S.W.2d 1075.
The judgment is affirmed.
Affirmed.