Appellant files a most persuasive motion for rehearing and argument in support thereof based upon the contention that the undisputed evidence shows the house burglarized *Page 64 to have been in the possession of R. T. Speights, the real owner of the business; and not in W. R. Speights, who was alleged in the indictment to have been in possession, and claimed by the state to be the special owner. If appellant's contention is sound, then the judgment must be reversed for variance between the allegation and the proof. It is true that R. T. Speights was present and aided in conducting the business on the very day preceding the night on which the burglary occurred. He balanced the cash and locked up the store when it was closed for the night. He testified that his father W. R. Speights was manager of and in control of the business. Upon that point W. R. Speights testified as follows:
"I run a grocery business there. I am the manager of thatbusiness and control it. I do the buying and hiring and firing,etc. In other words I am in control of the business. It is R.T. Speights' business. R. T. Speights is my son. He has been inbad health since after his mother died up until here lately. Ofcourse he is not stout yet; been in bad health and treatedquite a while by doctors and would go out and sit a while at one place. It just seems like his memory got off for quite a while. I was running that business there on or about the 15th day of November, 1926."
"The business belonged to Roger Speights; R. T. Speights. It is in his name. He worked in there himself; since he has been able he has. He was working there at that time. He has been working there for some time most of the time. His work there in the store is the only occupation he has, helping operate the store. He doesn't work for anybody else. On this identical day he was at work there in the store. He checked up that night."
It is apparent that R. T. Speights had been in poor health and the management of the business had been put in the hands of his father. This management was still in force when the burglary occurred. Because R. T. Speights was present working in the store, aided in checking up the cash and closing the store, in our opinion forms no sufficient basis to support a holding by this court that as a matter of law the "undisputed" evidence shows possession to have been in him to the exclusion of his father. The evidence may have been sufficient to raise an issue upon the question which the court could have been called upon to submit to the jury by proper request, but this was not made. We feel unauthorized to revise our former opinion on the grounds urged in the motion and it will be overruled.
Overruled. *Page 65