R. E. Wideman v. State Alabama

COLEMAN, Justice. In granting the writ, we specified that review would be limited to that part of the opinion of the Court
of Appeals delivered on rehearing, wherein it was concluded that there was a fatal variance between the indictment and proof
in that the indictment described one of the items stolen as 'one piece of steel cable * * * a better description of which
property is to the Grand Jury unknown otherwise than as indicated * * *,' but the proof showed that the Grand Jury did know
that the cable stolen was seventy-five feet long and, therefore, did know a better description of the property. The rule is well established that conviction cannot be sustained when a material variance appears between averment and proof,
and objection is properly made. Duvall v. State, 63 Ala. 12; Winter v. State, 90 Ala. 637, 8 So. 556; James v. State, 115
Ala. 83, 22 So. 565.