*283ON STATE’S MOTION FOR REHEARING.
HAWKINS, Presiding Judge.The State has filed a motion for rehearing insisting that we were in error originally in predicting a reversal upon the claimed variance between the proof and the averment that the road upon which the collision occurred was “State Highway No. 1.” It is true, as stated in our original opinion, that sometime before the collision the State Highway Commission had re-designated the highway as U. S. Highway No. 80. It seems clear that before said re-designation it was known as and called State Highway No. 1.
The witness White testified that the highway in question was U. S. "80 and marked as such and designated as such by the Highway Department, but he also said: “This highway is also known as Highway No. 1.”
The witness Ragsdale testified: “That highway is known as State Highway 1, U. S. 80, and was so known on the evening of December 21, 1940. * * * (On cross examination). In saying while ago that the highway in question was State Highway No. 1, will say that I haven’t been informed definitely that it is not. As to being informed there ever was one: I have seen the signs on the highway. I guess I could take you to such a sign on the highway. I don’t know whether there is a sign on the highway, but it is State Highway One, and is referred to as highway one. * * * There are plenty of state highway marker in the State, but I don’t know of one. in this county. * * * I don’t work for the Highway Department, but I do know what highway it is from here to Odessa. It is Highway One, U. S. 80. This highway has always been referred to as Highway No. 1. Even before I became an officer, it was referred to as Highway One; everybody calls it that. I don’t know who it was that referred to it as Highway One, but I do know it is State Highway One. I know who designates our state highways, but have never seen the designation, and as to knowing whether or not this highway was ever designated as such, I do know that it is State Highway One and U. S. Highway 80.”
The quoted testimony shows that the State proved that the tragedy occurred on a highway known as State Highway No. 1, which was also designated as U. S. Highway 80. It was the same highway, and known by either name.
*284We find in our C. C. P. Art. 401, which reads as follows: “In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and, if it be the accused, a reasonably accurate description of him shall be given in the indictment.”
.We are not unmindful of the fact that our court has held that the statute refers to individuals. White v. State, 24 Tex. Cr. R. 231, 5 S. W. 857; Thurmond v. State, 30 Tex. Cr. R. 539, 17 S. W. 1098. However, the fact that our Legislature many years ago provided that the averment of one name would be sufficient when a person might be known by that name as well as by another is somewhat analagous to the question now before us, and indicates that even at an early date the Legislature in the instance mentioned was somewhat ahead of the modern rule that a variance is not now regarded as material unless it appears that some substantial injury results from it. This rule has been recognized by this court. See Jones v. State, 115 Tex. Cr. R. 418, 27 S. W. (2d) 653 and authorities there cited.
We have examined many cases where the place of an offense was described with unnecessary particularity, as in the present instance. Among them are Blocker v. State, 73 S. W. (2d) 955; Meuly v. State, 3 Tex. Cr. App. 382; Evans v. State, 40 S. W. 988; McAllister v. State, 55 Tex. Cr. R. 264. It will be found that g-enerally where the question of variance arises where there has been a too unnecessary particular description the record discloses an entire failure in the evidence to meet the description, or that the evidence is contradictory of the description. Óur attention has not been called to any case where the exact question arose as is here presented, that is, where one name of a thing is alleged, and the proof shows it was known by that name, as well as by another. The language in the opinion on rehearing in Spencer v. State, 118 Tex. Cr. R. 336, 42 S. W. (2d) 259, is rather significant. There the road was described as the Dixie Overland Highway. The proof showed only Dixie Highway. The opinion says: “Unless we can assume that the ‘Dixie Highway’ and the ‘Dixie Overland Highway’ are one and the same road (and we know of no authority which au*285thorizes this court to indulge in such presumption against one accused of crime,) appellant’s contention must be sustained.”
There seems td be an intimation from the quoted language that if the roads had been shown to be the same the holding might have been different. Here the evidence shows that State Highway No. 1 and U. S. Highway No. 80 in Midland County was not only the same highway, but was also known by either name. Of course, if the highways were really different it is at once apparent that a variance in the names would be fatal. Also, if the averment of the name as set out in the indictment could be shown to have misled appellant in preparing his defense, or have resulted in his injury in any way a different question would arise.
We have concluded that we were in error in predicating a reversal on the claimed variance.
The State’s motion for rehearing is granted, our judgment of reversal is set aside, and the judgment of the trial court is now affirmed.