Intoxicating Liquor (Sale in Dry Area) — Variance.
Where the complaint alleged the sale of whisky on a certain specified lot and the proof showed that the sale was made on a different lot, there was a fatal variance between the pleading and the proof.
BEAUCHAMP, Judge.
Appellant was convicted in the county court of Ochiltree County on a charge of selling liquor, and assessed a fine of $100.00, from which he appeals.
The complaint alleges that appellant sold, "whiskey to Loy R. Jones, in a dry area, to-wit, on the premises at Lot 18, B. 24, City of Perryton, etc." As certified by the court in approving bills of exception numbers six and nine, the proof failed to show the sale of liquor at the place described. Loy R. Jones testified in behalf of the state that he bought two half pints of whiskey from appellant, "at his house here in Perryton." He further says that he went to the residence of Ed Padget, "located at 406 South East First Street, in Perryton, Ochiltree County, Texas." It is further described as the third house south of the American Legion Hall. We do not find in the record proof that it was sold at the place alleged. In view of the allegations made, we think that became necessary and that there is a variance between the information and the proof.
There are thirteen bills of exception calling attention to other matters presented as irregularities. We think that none of these would likely occur again and that it is not necessary to discuss them.
Because of the variance between the pleading and the proof, the judgment of the trial court is reversed and the cause remanded.