Appellant presents a request for permission to file a second motion for rehearing. After a careful re-examination of the entire record we have concluded that the request should be granted and the motion considered.
The indictment charged the sale of liquor to have been made to three parties, viz: Crossley, Gorman and Speers. The evidence shows the three agreed to purchase whiskey, divide it among them and each contribute to the purchase price. This agreement was carried out in so far as the three alleged purchasers were concerned, and the original opinion and that on former rehearing were based largely on the fact that, they were acting together in the matter. We have concluded that appellant's status, however, cannot be fixed from that viewpoint. The agreement among Crossley, Gorman and Speer was entered into at the town of Carbon, appellant not being present at the time and having no knowledge thereof. The three parties went in an automobile to a point in the road near appellant's house some miles in the country. Crossley left the car, went to the house, waked appellant, and negotiated with him for the purchase of a half-gallon of whiskey; these negotiations failed in consummating a sale because the price could not be agreed on. Gorman and Speer had remained in the car; just how far it was from the house is not shown by the record, but Gorman and Speer did not hear Crossley's interview with appellant. When Crossley returned to the car he reported his failure to drive a bargain whereupon Gorman went to the house and reopened negotiations, leaving Crossley and Speer at the car. Gorman was more successful. He and appellant agreed on eight dollars for the whiskey which Gorman agreed to pay the next day, and the whiskey was delivered to Gorman who took it to the car. Crossley and Speer did not hear appellant's and Gorman's trade. The three parties returned to town, divided the whiskey, and Crossley and Speer each gave to Gorman *Page 58 the money for their part of it, and the next day he paid all of the purchase price to appellant.
The state had alleged a joint sale to all three of the parties and was bound to support the averment by the proof. Ellington v. State, 86 S.W. Rep. 330; O'Shennessy v. State,49 Tex. Crim. 600, 96 S.W. Rep. 790; Sessions v. State, 98 S.W. Rep., 243. It was so held by this court when the sale of intoxicating liquor was a misdemeanor, and we see no reason now for liberalizing the rule when the offense is a felony. The case of Price v. State, 83 Tex.Crim. Rep., 202 S.W. Rep., 948 is direct and recent authority that the proof must support the allegations as to the purchaser. The evidence shows beyond dispute that Speer was not known to appellant in the transaction. So far as the latter was concerned Speer might have remained in town, or have had no existence whatever. There could be no meeting of the minds of appellant and Speer on a contract of sale when appellant was unaware of Speer's connection with the purchase. To hold otherwise would in effect overrule the cases cited and many others noted in Price v. State, (supra). This we have no disposition to do believing they announce a correct rule.
The attention of the learned trial judge was called to appellant's contention as to a variance by a requested charge to the effect that an acquittal must result if a sale was made by appellant to less than all of the parties named as purchasers. This charge should have been given.
Having reached the conclusion that we were in error in affirming the judgment and in overruling the motion for rehearing those orders are set aside, and the judgment is reversed and the cause remanded for the reasons stated.
Reversed and remanded.
CONCURRING OPINION ON MOTION FOR REHEARING.