Poston v. State

McCORD, Judge.

Appellant was convicted of a petty theft, and his punishment assessed at a fine of $10 and ten days imprisonment in the county jail.

The indictment charged appellant with the theft of one sack of walnuts of the value of $5. The proof shows beyond controversy that it was a sack of mixed nuts, consisting of walnuts, almonds, hazelnuts and niggertoes. Motion for a new trial was made in the court below on the ground that the testimony did not support the allegations in the bill of indictment, and that there was a variance. We think this contention of appellant is correct. Warrington…