ON MOTION FOR REHEARING.
KRUEGER, Judge.The State has filed an elaborate motion for a rehearing in this case which discloses much research and effort on the part of counsel in marshalling the facts in an endeavor to convince us that we committed error in reversing and remanding this cause on the ground of the insufficiency of the evidence to sustain the conviction. It may be that in the discussion of the legal proposition involved we used too many words in our effort to show that the State’s evidence does not show the appellant’s guilt beyond a reasonable doubt and thus failed to *131clearly convey to the District Attorney the real basis of our conclusion. The real basis of our conclusion was that the State had failed to establish the corpus delicti.
The indictment in this case charged appellant with the theft of seven sheep from an unknown owner. This the State was required to prove beyond a reasonable doubt and unless it did so, the conviction cannot stand. In deciding this question, we will consider the State’s evidence in its strongest light for the purpose of determining whether or not it established the corpus delicti. If it does not, that ends this case, although appellant may have made. contradictory statements as to how and where he acquired the alleged stolen sheep. The State’s evidence shows that on the 13th day of April, 1940, appellant took seven sheep out of a pen or barn on Tom Renfroe’s ranch, put them in an automobile and carried them to San Angelo, where he sold them. These sheep were freshly sheared and the left ear of each was partly cut off and was bleeding. These are the sheep which the State claims were stolen by appellant from an unknown owner. There is no proof that any sheep in that community belonging to an unknown owner had disappeared or had been missed. The evidence is equally as strong that the sheep in question, if stolen at all, were stolen from Tom Renfroe or William Burke as from an unknown owner. If the sheep were stolen from either of them, then they were taken from a known owner, and .under such circumstances, there would be a variance between the allegation and the proof. Obviously, this would not sustain a conviction for theft from an unknown owner. See Morgan v. State, 80 S. W. (2d) 975. The record reveals that the grand jury had Burke and other ranchmen before them in endeavoring to ascertain whose sheep they were. Presumably, neither claimed them. If there were any sheep in that community which belonged to a person unknown, certainly some proof could have been offered in support thereof; and if such sheep disappeared or were missed, it seems reasonable that some evidence on the subject could have been introduced by the State. In support of what we have said here, we refer to the following authorities: Lane v. State, 45 S. W. 693; Dawson v. State, 61 S. W. 489.
The State’s motion for rehearing is overruled.
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.