Defendant was convicted under an information charging him with the theft of two hundred pounds of seed cotton, of the value of six dollars, the property of Henry Hodges. It is contended by the defendant on this appeal that there is a material and fatal variance between the allegation of the ownership of the cotton and the proof of such ownership as made upon the trial.
*627Bearing upon this question of ownership the evidence is substantially as follows: Hodges rented certain land to one Williams, and was to receive for the rent thereof one-half the cotton crop raised thereon. Williams took into partnership in the cultivation of the land one Clark, who was to have an interest in said cotton crop, of one-eighth. A portion of the cotton crop raised upon the land had been gathered and placed in a pen situated upon the land of Hodges, but upon different land from that which he had rented to Williams. It was a portion of this cotton so gathered and penned that was alleged to have been stolen. Williams and Clark were both indebted to Hodges, and it was understood between the parties that Hodges was to receive his pay out of this cotton, and that the said cotton should belong to him until said indebtedness had been paid. There is some conflict of evidence as to whose possession the cotton was in at the time it is alleged to have been stolen. Hodges testified that it was in his possession. Williams testified that it was in his possession, but that he considered it as belonging to Hodges; and Williams further testifies that Hodges had employed him to watch the cotton and prevent it from being stolen. We conclude from this state of evidence that Hodges, although there had been no division of the cotton and no settlement of accounts between the parties, was nevertheless the special owner of the cotton, the interest therein of Williams and Clark being pledged to him as security for their indebtedness to him. So far as the question of possession is concerned, the evidence being conflicting, we would not disturb the conviction. Although Williams and Clark may have been the general owners of the property, yet, if Hodges had the possession, charge and control of the same, the allegation of ownership in the information would be sustained. (Code Grim. Proc., Art. 436.)
Again, it is contended by the defendant that, as Clark was one of the owners of the cotton, it was necessary to prove his want of consent to the taking of the same. As a general rule this proposition is correct; but in this case the evidence shows that Clark was a principal with the defendant in the taking of the cotton; and it further shows that such taking was by stealth and undoubtedly fraudulent on the part of both Clark and defendant. It is provided by statute as follows: “Ho person can be guilty of theft by taking property belonging to himself except in the following cases: 1. Where the property has been deposited with the person in possession as a pledge or secuiity for debt.” *628ri4. In all other cases where the person so deprived of possession is, at the time of talcing, lawfully entitled to the possession thereof as against the true owner.” (Penal Code, Art. 730.)-How, if, as we conclude from the evidence, this cotton was pledged to Hodges by Williams and Clark, to secure their indebtedness to him, then Clark- had no right to take possession of the same, or any part thereof, until his said indebtedness had been paid. Having no right himself to take the same, he could not authorize the defendant or any one else to do so, and his consent to the taking could not of itself affect the question of the guilt of the defendant. We are of the opinion, therefore, that it was not essential in this case for the State to prove the want of Clark’s consent to the taking of the cotton.
Opinion delivered March 26, 1884.It is further insisted by the defendant that, as the information alleged the aggregate value of the two hundred pounds of cotton, to be six dollars, the proof must correspond precisely with this-allegation, and that it is not sufficient that the proof shows the theft of only seventy-five pounds of cotton of the value of only three dollars. If this were a case in which the value of the property could affect the grade or punishment of the offense, we would hold this position to be well taken. Thus, if the indictment had charged the theft of several articles of property, of an aggregate value of more than twenty dollars, and the evidence-had established the theft of only a portion of the articles, a conviction upon such a state of proof of a felony could not be maintained,- because such proof would leave it uncertain as to whether-the offense was a misdemeanor or a felony. (Thompson v. The State, 43 Texas, 268; Ware v. The State, 2 Texas Ct. App., 547; Doyle v. The State, 4 Texas Ct. App., 253.)
In this case, however, the value of the property can have-nothing to do either with the grade or the punishment of the offense. The defendant was charged with a misdemeanor, and could not be convicted of a felony.
Finding no error in the judgment, the same is affirmed.
Affirmed..