I think that the averment in the indictment charging the sale of liquor to Albert Bodine is supported by the proof that it was sold to Albert Bodine, together with Roy Bodine and Perry Jeanes, under the circumstances set out in the opinion. In other words, on the facts stated I think there was no variance. See Ryan v. State, 32 Tex. 280; Parker v. State,45 Tex. Crim. 334; Asher v. State, 277 S.W. 1103. If the indictment charged a sale to Albert Bodine, Roy Bodine and Perry Jeanes and the proof had shown a sale to only one of them, there would have been a variance. See Price v. State, 202 S.W. Rep. 948, 83 Tex.Crim. Rep.; Brown v. State,102 Tex. Crim. 54.
I concur in the affirmance of the judgment.
Concurring opinion.
ON MOTION FOR REHEARING.