The defendant in the court below was convicted of the offense of misdemeanor. In the presentment it was charged, that he had sold and bartered, for valuable consideration, alcoholic, spirituous, malt, and intoxicating liquor to Croff Brewer. The sale was alleged to have taken place on the 15th of December, 1908, and tlie presentment was returned to the August term, 1909, of Jasper superior court..- The case was transferred to the city court of Montieello for trial; and it is insisted that the judge of the city court erred in overruling the motion for new trial. Special assignments of error complained that the court erred in stating to the jury the contentions of the State, in that he did not limit the time to which the evidence of the alleged sale should he confined, nor limit the inquiry to the person to whom the liquor was sold, and particularly that the instructions of the judge made it appear to the jury that the indictment charged the sale of different kinds of liquors; whereas the indictment charged the sale of only one kind of liquor, to wit, alcoholic, spirituous, malt, and intoxicating liquor. Exception is also taken to tlie charge of the judge upon the subject of reasonable doubt, wherein the judge told the jury that “a reasonable doubt is just what the words themselves mean, —a reasonable doubt, — a doubt that grows out of the testimony, or out of the want of testimony." It is contended that this was error because doubt might arise not merely from testimony, or
Treating all the other exceptions together, they really raise but two points for our consideration, or rather the single point that there was a fatal variance between the allegation of the presentment and the proof submitted in its support, and that this variance existed as to two material matters necessary to be established. It is contended that the instructions to which exceptions are taken were not authorized, because not in harmony with the evidence, when considered with a view, to its applicability to the presentment. For instance, it is insisted that the verdict is contrary to evidence, and also that the judge erred in charging the jury that if they found any of the liquors were sold to Croif Brewer, as alleged in the indictment, the jury would be authorized to convict, and that the evidence shows that the sale was not made to Croif Brewer alone, as alleged in the presentment, but to Croif Brewer jointly with Phenie Benton. Upon this subject it is only necessary to say that the record, shows that Phenie Benton testified that she never bought any intoxicating liquor from the defendant, and Croif Brewer testified that he .purchased the liquor in question, and that he himself handed over the money with which to pay for it. It is true he also testified that Phenie helped him to pay for it, ho contributing 25 cents and Phenie 10 cents, but he does not testify that Phenie participated in the purchase. Though Phenié may have loaned him 10 cents of the money', or may have contributed 10 cents to the purchase-price, this- does not prevent Croif Brewer from being the sole purchaser. So far as the defendant is concerned, the sale was made by the defendant to Croif Brewer without any knowledge of Phenie Benton’s interest in the matter.