Ewing v. StateEwing v. State
- Reporters:
- , ,
- Before:
- Woodley
ON appellant’s motion for rehearing
WOODLEY, Judge.All former opinions are withdrawn and the following substituted therefor.
Thе conviction is for transporting whisky in a dry area; the punishment, 30 days in jail and a fine of $500.
The information not only alleged the trаnsportation of whisky in a dry arеa, but alleged that appellant transported said whisky in a “2 door” automobile.
The evidence does nоt support the allegatiоn that the automobile appellant used was a “2 door.”
Having аlleged the transportatiоn of whisky in a dry area, it was not nеcessary that the information allege that it was transported in an automobile, or to describe the vehicle.
Thе rule appears to bе, however, that having describеd the automobile used in the unlаwful act, it devolved upon thе state to prove the descriptive averments. The allegation that the automobile was a “2 door,” being desсriptive of the identity of the particular unlawful act charged, may not be rejectеd as surplusage. Branch’s Ann. P.C. 2nd Ed., Sec. 518. See also McElroy v. Statе, 154 Tex. Cr. R. 20, 224 S.W. 2d 715; Franklin v. State, 157 Tex. Cr. R. 177, 247 S.W. 2d 562; Dugan v. State, *519 159, Tex. Cr. R. 364, 264 S.W. 2d 120; Daulton v. State, 155 Tex. Cr. R. 335, 235 S.W. 2d 165; Staley v. State, 154 Tex. Cr. R. 546, 229 S.W. 2d 170.
The trial court, in formal bills of exception, has certifiеd that there was a variance between the allegation of the information and thе proof in this regard, and that the evidence is insufficient to sustain the conviction. These сertifications appеar to be supported by the statement of facts.
The аppellant’s motion for rehearing is granted, the order affirming- the conviction is set aside and the judgment is now reversed and the cause remanded.