This is an appeal from a conviction of the larceny of a cow. The indictment described the cow simply as the "property of Walter Brown" and set forth that a more perfect description thereof was to the grand jurors unknown. The evidence discloses that the cow while owned by Walker Brown was sold, or agreed to be sold, by him to another, who made him a partial payment thereon and left the cow in his possession for delivery to the purchaser when the balance of the purchase price should be paid. The cow was in Brown's possession when stolen.
The appellant's complaints are: First, that there is a variance between the indictment and the proof in two particulars: (1) In the name of the owner of the cow, the indictment alleging that name to be Walter Brown *Page 173 and the evidence disclosing that it was Walker Brown; and (2) in the ownership of the cow, the evidence disclosing that the cow was not owned by Brown, but by another.
The variance between the indictment and proof in the name of the owner of the cow was amendable at the trial, it being clear from the evidence that the identity of the offense charged would not have been thereby changed. Objections to variances of this character must be made before verdict and, if not, are waived. Consensus tollit errorem. Foster v. State, 52 Miss. 695; Unger v. State, 42 Miss. 649; Wood v. State, 64 Miss. 761, 2 So. 247; Smith v. State, 112 Miss. 248, 72 So. 929; Slade v. State (Miss.), 119 So. 355. Compare White v. State, 95 Miss. 75, 48 So. 611; Hudson v. State, 73 Miss. 784, 19 So. 965.
The appellant relies on Clark v. State, 100 Miss. 751, 57 So. 209, 38 L.R.A. (N.S.) 187, Ann. Cas. 1914A, 463, wherein the appellant was convicted of murder on an indictment charging him with the murder of Tobe Wallace. The evidence disclosed that the name of the person killed was Tobe Hollis. No objection thereto was interposed at the trial. The court held that, (1) the objection could be raised in the Supreme Court for the first time, and (2) that the variance, though curable by amendment, was fatal, and therefore reversed and remanded the case. This decision is in conflict with the construction theretofore put on the statute, is erroneous, and must be and is hereby overruled.
In Davis v. State, 150 Miss. 797, 117 So. 116, an amendment to cure a similar variance between the indictment and the proof was authorized by the court at the trial, but the statute providing how the amendment should be made was not complied with, for which reason the judgment of the court below was reversed and the cause remanded. That case is not in point here. The district attorney having attempted to amend the indictment to *Page 174 conform to the proof, it was not necessary for the appellant to interpose an objection to the variance.
The cow was in Brown's possession either as owner or as security for the unpaid purchase price thereof. In either case its ownership for the purpose of this prosecution was properly alleged to be in Brown. 3 C.J. 832; 2 Bishop, Crim. Procedure (4 Ed.), section 72.
Affirmed.