53 S.W.2d 300 | Tex. Crim. App. | 1932
Lead Opinion
The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.
It was charged in the indictment that appellant sold spirituous and malt liquor capable of producing intoxication to W. P. White, Jr. The alleged purchaser testified that he and Elmer Gant went to appellant's home on March 14, 1931, and talked to him about buying some whisky; that appellant told them, in effect, that he would let them have the whisky if they could find it; that they left, but in a short while returned and met appellant about a half mile from his house; that appellant delivered two pints of whisky to them, for which they paid him $3, he handing the money to appellant. Appellant denied that he sold the parties whisky and testified that he was not at the place at the time the whisky was delivered. He admitted that the boys came to his house and asked him to sell them some liquor. He said, however, that he told them that he did not have any liquor and they left. He declared that he did not go down to the place described by the witnesses to deliver whisky to them. A witness for appellant testified that he was present and saw Troy Carroll sell the whisky to White and his companion.
As heretofore stated, it was alleged in the indictment that the sale of the whisky in question was made to W. P. White, Jr. Appellant contends that the proof showed a sale to White and Gant. It is his position that this constitutes a fatal variance. In the case of McGee v. State,
The judgment is affirmed.
Affirmed. *220
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
The contention of appellant in his motion for rehearing is that we erred in following the case of McGee v. State,
Under those circumstances, the motion for rehearing will be overruled.
Overruled.
