116 P. 454 | Wyo. | 1911
In each of these cases the defendant was charged with selling intoxicating liquors without a license and each convicted and fined in the sum of one hundred and fifty dollars on each count of the information on which he was found guilty. They bring the cases here on error.
These cases and the case of Russell v. State, this day decided, by request of counsel were consolidated for the purpose of argument, and have been submitted together. The cases are so similar that the decision in the Russell 'case disposes of most of the questions presented, and need not be repeated here. In the Ross case and the Hansen case the court instructed the jury in one instruction that, “the state is not required to prove that the crime charged in any count was committed on the exact day alleged in the information; but it is sufficient for the state to prove that it was committed at any time prior to the filing of the information.” And in another instruction that, '“the laws of this state forbid the granting of any license to. sell intoxicating liquors at any place outside of incorporated cities and towns. And in this case, if you find that the place where defendant is alleged to have sold intoxicating liquor is outside of any incorporated city or town, then it would, be unnecessary for you to inquire whether defendant had a license, as no license could lawfully be granted to sell liquor at such place.” It is contended that in view of the
In the Hansen case in two counts of the information the sales are alleged to have been made to “F. H. Leslie,” while the evidence was that those sales were to “Frank W. Leslie.” It is claimed that there was a fatal variance and that the defendant should have been acquitted on those counts. This objection is fully answered by the .statute (Sec. 6166, Comp. Stat.) “Whenever, on the trial of any indictment for any offense, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof in the Christian name or surname, or both Christian name and surname, or other description whatever of any person whomsoever, therein named or described, or in the name or description of any •matter of thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.” The variance in the name does not appear to have been directly called to the attention of the court either by objection to the testimony or in the motion for a new trial; but, however that may be, we find nothing in the record to indicate
Affirmed.