The verdict was amply authorized by the evidence, and the denial of a new trial was not error.
DECIDED NOVEMBER 27, 1942. REHEARING DENIED DECEMBER 10, 1942. The accused was convicted of simple larceny (cattle stealing), his motion for a new trial was overruled, and that judgment is assigned as error. The stolen animal was described in the indictment as follows: "A white-face Hereford bull weighing about 750 pounds, marked overbit and underbit and crop in left ear, and marked split and under bit in right ear." The evidence as set forth in the record shows that one witness, not the owner or keeper of the bull, but an attache of the sheriff's office who recovered the animal, testified that the bull was "a Hereford bull weighing 755 pounds, white faced, marked overbit and underbit and crop in the left ear, and a split and overbit in the right ear." Counsel for the accused contends there was a fatal variance between the allege and the probata. Ordinarily this would be *Page 562 true in the majority of cattle-stealing cases, where the animals stolen are not recovered alive and unharmed. In such cases the identification marks in their ears, especially when they have been slaughtered, are often the only means of identifying them. There are exceptions to every rule. In Wiley v. State,74 Ga. 840, cited in the brief of counsel for the accused, the court said: "Where an indictment charged a defendant with having stolen a white barrow hog, marked with a crop and under bit in each ear, and the prosecutor testified to having lost a white barrow hog with a crop in each ear, and there was no furtheridentification of the stolen property [italics ours], this was not sufficient to warrant a verdict of guilty. It is incumbent on the State to show that the property alleged to have been stolen was, in fact, stolen; and if this is not done, the corpus delicate is not established." That case states the rule clearly and distinctly. Where there is a variance between the allegations of the indictment and the proof as to the markings in the ears of the stolen animal, and where there was no other evidence showing that the cow alleged to have been stolen was, in fact, the cow stolen by the accused, there is a fatal variance between the allegata and the probata. But, where, as in the case at bar, the stolen bull was recovered alive and unharmed and brought back to his keeper who positively identified it as the white-faced Hereford bull, and the only bull, that was stolen from him, and where that evidence was not contradicted, even by the defendant's statement to the jury, the variance between the allegations in the indictment and the proof was cured, and the difference between an "underbit" and an "overbit" became immaterial. The uncontradicted evidence for the State demanded a finding that the bull alleged to have been stolen was, in fact, the bull stolen by the accused. The evidence amply authorized the verdict, and the overruling of the general grounds of the motion for new trial was not error.
Special ground 1 assigns error upon an excerpt from the charge on the law of "admissions." The charge was authorized by the evidence, and was not error for any reason assigned. It did not deal with the law of "confessions," and the allegation in the ground that it did so deal is not supported by the language of the charge. Special ground 2 complains of the failure of the court to instruct the jury, without any request, upon the law of circumstantial evidence. *Page 563 The evidence in the case was not wholly circumstantial and therefore, under repeated rulings of the Supreme Court and this court, the failure of the court to charge the law of circumstantial evidence was not error, in the absence of a timely, written request for such a charge. Special ground 3 alleges that the court erred in not charging the jury, even without a written request to do so, as follows: "You look to the evidence and see whether or not any admissions appear therefrom, and it is a question of fact for the jury to determine as to whether or not any admissions have been made by the defendant." The uncontradicted evidence showed that the defendant, freely and voluntarily, made certain admissions to the officers who arrested him. That evidence was not contradicted even by the defendant in his statement to the jury. Therefore, a finding was demanded that he had made such admissions, and there was no issue of fact before the jury on that question. It follows that the failure of the court to give the above-quoted charge was not error, especially in the absence of a request for the charge. Special ground 4 complains of the failure of the court to give, without a request therefore, the following charge: "You look to the evidence and see whether or not any confession appears therefrom, and it is a question of fact for the jury to determine as to whether or not any confession has been made by the defendant." The evidence did not show, or attempt to show, that the defendant had made any confession, and the judge did not instruct the jury on the subject of confessions. If he had done so it would have been error. The ground is without merit.
The overruling of the motion for new trial was not error.
Judgment affirmed. Gardner, J., concurs specially. MacIntyre,J., dissents.