I regret to be out of agreement with my brethren on any question and especially one arising from a difference of opinion as to variance between allegations in an indictment and the proof — a question which could be avoided by the exercise of caution on the part of the pleader in placing in the indictment plural counts to meet the various phases of the evidence.
Article 405 C. C. P. reads:
"An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know *Page 458 what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force and arms' or 'contrary to the form of the statute' necessary."
Article 406 C. C. P. follows:
"When a statute defining any offense uses special or particular terms, an indictment on it may use the general term which, in common language, embraces the special term. To chargean unlawful sale, it is necessary to name the purchaser."
This court is committed to the proposition that the naming of the purchaser is descriptive of the offenses; it could not be otherwise in view of the statute quoted. If it is descriptive of the offense it ought to be proven as alleged. This court is further committed to the proposition that the allegation of a sale to more than one is not supported by proof of a sale to only one, but that in such case a variance occurs. O'Shennessy v. State, ___ Tex. Cr. R. ___, 96 S.W. 790; Sessions v. State, ___ Tex. Cr. R. ___, 98 S.W. 243; Ellington v. State, ___ Tex. Cr. R. ___, 86 S.W. 330; Price v. State, 83 Tex.Crim. R.. The majority opinion in the present case holds that allegation of a sale to one is supported by proof of a joint sale to more than one and constitutes no variance. The mind of the present writer does not grasp the distinction. It appears to me that it is not possible for both holdings to be correct. Something is said in the original opinion about confusing the law of obligation and contract in civil cases with the question now being considered. If there is any confusion it is because the criminal law is itself dealing with a contract just as it does in denouncing the forgery of a promissory note. Where the purport clause of an indictment for forgery declares on an instrument averred to be signed by one party and the tenor clause discloses an instrument signed by more than one a variance is held apparent from the indictment itself. Stephens v. State, 36 Tex.Crim. R., 37 S.W. 425; Tracy v. State,49 Tex. Crim. 37, 90 S.W. 308; Crayton v. State, 45 Tex. Crim. 84; 73 S.W. 1046; Gibbons v. State, 36 Tex.Crim. R.,37 S.W. 861. Also, where the instrument alleged to be forged is described as being signed by one party, an instrument bearing the signatures of two parties is not admissible because of the variance. Booth v. State, 36 S.W. 600. The averment of a sale of anything simply alleges a consummated contract between the parties named. On the first of the *Page 459 month A makes a sale to B; on the fifteenth of the month he makes a joint sale of the same kind of an article to B and C and on the 30th of the month he makes a joint sale of the same kind of an article to B, C and D. For some reason B summons A into court complaining of the article sold to him. By no stretch of construction can it be said that A would have notice that B was complaining of the articles purchased jointly by himself and the other parties. So if the state alleges a sale by A to B it does not describe an offense consisting of a joint sale made by A to B and others, and proof of the joint sale should be excluded as a variance. We so held directly in the opinion on rehearing in Asher's case, 102 Tex.Crim. R.,277 S.W. 1099. There one count in the indictment charged a sale to Savage. The court told the jury that if the evidence showed a sale made to Savage and Hedgespeth jointly the averment of the sale to Savage would be satisfied. This charge was held erroneous. The Asher case upon this point has been followed in Elliott v. State, 102 Tex.Crim. R.; 277 S.W. 141; Nelson v. State, 108 Tex.Crim. R., 299 S.W. 245; Knauff v. State,108 Tex. Crim. 590, 2 S.W.2d 229. If the majority opinion is to stand as the law the cases mentioned ought to be specifically overruled and not left in conflict with the present majority holding to confuse the bench and bar of the state.
Believing the cases last mentioned are correct in principle, impels me to respectfully record my dissent.