State v. Nelson

With deference, I dissent from the majority opinion. It seems to me that the instant record discloses a clear case of a variance between the proof and the indictment. Here, the indictment charged the larceny of one red Duroc Jersey hog and two black Poland China hogs. The proof was to the effect that the hogs stolen were a red hog and two black hogs. Generally, in an indictment for the larceny of an animal, the simple use of the generic term in the indictment is sufficient to include all members-of the genus. Thus, it has been held that there is no variance if the indictment charges the…