The conviction is for the sale of whisky in a dry area. The punishment assessed is a fine of $100.00.
Appellant brings forward several complaints but we deem it necessary to discuss only the one relating to the variance between the allegation and the proof. It was charged in the complaint and information that on or about the 2nd day of October, 1943, appellant did, in Newton County, Texas, a dry area, sell whisky to Allen E. Lewis. The proof showed that the bottle which contained the liquid sold was labeled "Rum." No other proof of any kind or character that it was whisky was introduced. Consequently there is a variance between the allegation and the proof which requires a reversal of the judgment of conviction. In support of what we have said we refer to the following cases: Early v. State, 56 Tex. Crim. 61; Poston v. State, 126 S.W. 1148, 58 Tex.Crim. R.; Flippin v. State, 134 Tex.Crim. R., (p. 355, on motion for rehearing); McMillan v. State, 128 Tex.Crim. R.; Coleman v. State, 21 Tex. Cr. App. 520 (526).
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.
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.