ON MOTION FOR REHEARING.
-DAVIDSON, Judge.Upon the original submission of this case, our attention was not called to the variance between the allegations of the information and the proof. The State, in charging the offense of transporting intoxicating liquor, did so as follows: “One Bob Vaught, in Lubbock County, and State of Texas, did then and there unlawfully, transport an alcoholic beverage containing alcohol in excess of four per cent by weight, to-wit, whiskey, in/a dry area, in an automobile on a public highway, to-wit, commonly known as U. S. Highway No. 84, in Lubbock County, Texas — — — — — — — — — — —.” The effect of said allegation was that appellant transported the whiskey, in an automobile, on U. S. Highway No. 84.
*625There is no testimony in this record that the highway where appellant was seen driving the car, with whiskey therein, was on or along U. S. Highway No. 84. The only proof along this line is that he was driving the car and that the car was found on the “Shallowater Highway in Lubbock County, Texas.” There is no testimony that the “Shallowater Highway” was known as “U. S. Highway No. 84,” nor that they were one and the same highway.
The State, having described with unnecessary particularity the place where the offense was alleged to have been committed, was bound to sustain that allegation by proof. Blocker v. State, 73 S. W. 955; Meuly v. State, 3 Tex. App. 382; Evans v. State, 40 S. W. 988; McAllister v. State, 55 Tex. Cr. R. 264; 116 S. W. 582; Spencer v. State, 118 Tex. Cr. R. 336, 42 S. W. (2d) 259. The Spencer case, supra, is deemed directly applicable and controlling here.
It is apparent that there is a fatal variance existing between the allegations of the information and the proof, which renders the facts insufficient to support the conviction.
The appellant’s motion for rehearing is granted, the affirmance is set aside, and the judgment is now 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.