The present indictment is framed under the amendment of section 3706, Lev. Code, found' on page 260, Acts of 1871-5 ; Code of 1876, § 1358. The indictment pursues the statute strictly, and is sufficient. This statute created a new offense, of very high grade, out of an act which, by the common law, was oníy a trespass. Growing or outstanding crops are part of the freehold, and, before this statute, were not the subject of larceny; which consisted of feloniously taking and carrying away the personal goods of another.- — 4 Black. Com. 229, 232.
2. At common law, it was necessary that the proof of the ownership of property, alleged to be stolen, should correspond with the averment in the indictment. — 2 Bish. Cr. Proc. § 722; Parmer v. The State, 41 Ala. 418; Davis v. The State, 17 Ala. 415. Section 4800, Code of 1876, declares that, “ when any personal property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners.” This statute relates to personal property; and, as we have shown above, an outstanding crop is not personal property. The statute has no application to the present case.
The variance between the indictment and proof was such a misdescription of a material matter therein stated, as to require an acquittal on the indictment as now framed. — See Code of 1876, §§ 1816-7.
Beversed and remanded. Let the prisoner remain in custody, until discharged by due course of law.