In addition to the question of variance discussed in the original opinion, the appellant complains of the refusal of a requested charge reading thus:
"Before you find the defendant guilty in this case you must believe beyond a reasonable doubt that the commodity sold the prosecuting witness was intoxicating."
In the main charge the court instructed the jury that there could be no conviction unless they believed beyond a reasonable doubt that the commodity sold was whisky, and if upon that subject the jury *Page 457 entertained a reasonable doubt there should be an acquittal. He also instructed the jury that if the commodity sold was a mixture of plum juice, extract and sugar, or if upon that subject they had a reasonable doubt there should be an acquittal. There was also given a general charge upon the presumption of innocence and reasonable doubt. The paragraphs of the court's charge mentioned appear to have rendered the special charge unnecessary.
The indictment charged that John McGee did unlawfully sell to Elbert Bodine spirituous liquor. The proof showed that Elbert Bodine, Roy Bodine and Perry Jeanes were together in an automobile. They met McGee and sought to purchase whisky from him. He said he had none with him but might find some when he got home. After a time they returned to his home and the purchase was made. McGee brought out a pint of whisky and handed it to Elbert Bodine, and each of the others paid proportionately for the whisky.
Counsel for the appellant, in a very forceful and earnest argument, insisted that in holding that there was no variance error was committed by the trial court and by this court. The question has been found by this court difficult of solution and has been discussed upon several occasions as is indicated in the original and concurring opinions. The writer is unable to add anything of value to what has been heretofore said, but is constrained to adhere to the conclusion reached and stated in the original opinion, namely, that as Elbert Bodine, who was named in the indictment as the purchaser, was one of those who bought, received and paid for the liquor, a fatal variance between the allegation and proof is not revealed.
The motion is overruled.
Overruled.
DISSENTING OPINION ON MOTION FOR REHEARING.