Opinion
No. 23519.
Delivered December 11, 1946.
1. — Intoxicating Liquor — Evidence — Transportation.
Under complaint and information charging that defendant transported two quarts of whisky in dry area, State had only to prove that defendant transported whisky and State was not required to prove exact quantity of whisky transported.
2. — Intoxicating Liquor — Variance.
Defendant convicted of transporting whisky in dry area could not complain of variance between allegations in information and proof in that it charged transporting of two quarts of whisky while evidence established that he transported only two bottles, each of which contained four-fifths of a quart, where it was shown that bottle containing such quantity is generally referred to as a quart of liquor.
Appeal from County Court of Terry County. Hon. H. R. Winston, Judge.
Appeal from conviction for transporting whisky in a dry area; penalty, fine of $200.00.
Affirmed.
The opinion states the case.
Cunningham Boling, of Lubbock, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
The offense is transporting whisky in a dry area. The punishment assessed is a fine of $200.00.
Appellant's first complaint relates to the court's action in declining to sustain his motion to quash the complaint and information. We have carefully examined the same and reached the conclusion that they are sufficient to charge the offense of transporting whisky in a dry area.
The only other question presented for review relates to the court's action in declining to instruct the jury to return a verdict of not guilty. Appellant contends that he was entitled to such an instruction because of a variance between the allegations in the information, which follow the language of the complaint, and the proof. It was charged in the complaint and information that appellant transported two quarts of whisky in Terry County, a dry area, and the proof in support thereof was that he transported two bottles, each of which contained four-fifths of a quart. Of course, it was incumbent upon the State to prove that he transported whisky as that was descriptive of the article transported, but this did not require the State to prove the exact quantity of whisky transported. The quantity of whisky was not descriptive of the offense charged, but related solely to the quantity transported. In support of the opinion here expressed we refer to the following authorities: Rice v. State, 77 Tex. Crim. 617; Kersh v. State, 45 Tex.Crim. R.; Booher v. State, 80 Tex. Crim. 72; Rupard v. State, 7 Okla. Cr. R. 201. Moreover, there is evidence in the record to the effect that a bottle containing four-fifths of a quart of whisky is generally referred to as a quart of liquor.
No error appearing in the record, the judgment of the trial court is affirmed.
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.