Appellant strongly contends in his motion that there is a variance between the allegation and proof in this case, and that the sale of the liquor in question was not made to the alleged purchaser Will Moore, but was made to Sheriff McKinney, — and if not to McKinney, then it was a joint sale to Moore and McKinney. We are not in accord with either contention. There is no controversy in the testimony of the fact that the sale was consummated by the proposition made by appellant to Moore to sell him whisky, and the agreement by Moore to buy whisky, and the payment by Moore to appellant of the price agreed upon and the delivery of the whisky. The fact that Mr. McKinney was in the car in which Moore went to the place of purchase and delivery, and that Mr. McKinney had furnished to Moore the money with which to buy the liquor, if any could be bought, in nowise affects the guilt of appellant. He did not know Mr. McKinney in the transaction, he did not offer to sell to McKinney, he did not sell to McKinney, and his offense is complete upon proof of the fact of his sale to Moore. We regard the proposition of there being a joint sale, that is, a sale by appellant to both Moore and McKinney, as entirely unsupported by any testimony. No testimony was offered on the part of the defense contradicting or denying the testimony of Moore to the fact that appellant sold him the liquor in question.
The motion for rehearing will be overruled.
Overruled. *Page 285