Brown v. State , 102 Tex. Crim. 54 ( 1923 )

I cannot agree with my Brethren that there is a fatal variance in a liquor selling case, either when the indictment charges a sale to one named party and the proof is of a sale to that person jointly with others; or when the allegation is of a sale to two or more named parties and the proof is of a sale to but one. A variance is one thing, and a fatal variance, another and vastly different thing. The books are full of cases wherein matters of variance are held to be mere surplusage. Mr. Underhill in the new 3d. Ed. of his work on Criminal Evidence, in Sec. 80, says:

"The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense? If this be not so, then the variance is material, and the State, having failed to prove the crime, in substance as it is alleged, the acquittal of the accused should be directed. Whether a greater strictness of proof is required in criminal than is necessary in civil proceedings in favor of life and liberty is a question upon which the cases differ. But though the general rule is that the crime which is laid in the indictment must be proved substantially as alleged, no variance will be material if the allegations of the indictment are separable and the substance of the crime is proved, though some immaterial averments remain unproved. And as a general rule any allegation which is not descriptive of the identity of the offense itself, that is, which does not mark it out as a crime and distinguish it from other crimes, or from actions which are not criminal, and which therefore may be omitted without affecting the criminality of the charge and without detriment to the indictment, is mere surplusage and need not be proved."

All the authorities seem in entire accord on the proposition that to be a legal variance, the difference between the allegations and proof must be as to a matter which cannot be rejected without affecting the validity of the charge. A splendid statement of this principle appears in Warrington v. State, 1 Tex.Crim. App. 173, in drawing a distinction between surplusage and variance:

"Two questions generally arise. The first is, what allegations must be proved and what may be disregarded in evidence? The second is, what is sufficient proof of allegations which cannot be disregarded in evidence? The former includes the consideration of what constitutes mere surplusage in an indictment; the latter, what constitutes variance. Mere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated in the indictment, and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge against the defendant and without detriment to the indictment, are considered as mere surplusage and may be disregarded in evidence. But no allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage."

In presenting my views upon the question of difference between myself and my Brethren, I will first discuss the proposition that there is no variance between the allegation and proof when it is alleged that there is a sale to one, and on the trial it is proven that the sale was made jointly to that one and others. My Brethren both, refer to and cite theft cases and the rule in regard to the necessity for conformity in allegation and proof in matters of ownership in such cases. I need only state the rule in such cases as applicable to this phase of the instant question which I am discussing. It is so well understood as not to need citation of authorities. When the indictment names A as the owner of the alleged stolen property, and the proof shows that the property belonged jointly to A, B and C, this has never been held a fatal variance between the allegation and proof. It is not necessary to set out the names of all owners of alleged stolen property. See authorities cited by Mr. Branch in his Annotated P. C. p. 1317. If then analogy in theft cases is to control, we might regard the rule settled in liquor cases.

By me this rule is regarded as in conformity with all our statutes, with logic and with reason. In theft cases not only do we uniformly hold it not necessary to name all the owners of the stolen property, but with equal uniformity we hold it not necessary to prove that all the property described in the indictment, was taken. We allege theft of one cow and prove theft of ten, and vice versa. We allege theft of a watch, a knife, a pistol, etc., and prove the taking of only one of said articles, and never has this been held to be a fatal variance. Illustrations might be multiplied. In assault cases we allege that the offense was committed by the use of a piece of wood, a piece of iron and a knife, and hold that proof of any one of these is sufficient and not a fatal variance. We charge a man directly with taking property, and prove that he used an innocent agent, and this is no fatal variance. We charge a man with taking property in Williamson county and prove that at the time same was taken he was in Harris county, but that he used an innocent agent in the first named county, and hold this no fatal variance. We charge a man with the commission of any crime and prove that he was doing his part in the general plan, even though at another and different place from that of some person actually committing the crime, and hold this sufficient. We charge a man with committing a crime on one date and prove a date a year before that named; we charge a man with burglary and theft in the same indictment, prove both, — elect to stand on one, and in all these we hold there is no fatal variance. Dunham v. State, 59 Tex.Crim. Rep.; Miller v. State, 16 Tex.Crim. App. 416; Black v. State, 18 Tex.Crim. App. 124; Williams v. State, 24 Tex.Crim. App. 69. We charge that A, B and C committed a crime and prove that A alone was guilty. We charge that A alone committed a crime and prove that A, B and C acted with him in its commission. These are not held fatal variances. As applicable to this part of the discussion it is noted that:

Under the head of Divisible Averments Mr. Wharton on page 351, 10th Ed. of his work on Criminal Evidence, says:

"It is sufficient to prove so much of the indictment as shows the defendant to have been guilty of the substantive crime therein stated, though not to the full extent charged upon him, * * * Divisibility of this class, as we shall presently see, may relate either to the subject, the object, or the predicate. When several defendants are charged, one or more may be acquitted and the other convicted, provided enough be left to constitute the offense. When several articles are alleged to have been stolen, one can be separated from the other and a verdict had for any one. The same divisibility applies to the averments of the mode of doing the unlawful act, provided there be enough left to constitute the offense. The offense, however, of which the defendant is convicted must be, at common law, of the same class as that which he is charged."

It is to be remembered that Art. 451, Vernon's C. C. P., in laying down the requisites of an indictment, in subdivision 7, says: "The offense must be set forth in plain and intelligible words." Art. 452, id. says: "Everything should be stated in an indictment which is necessary to prove, but that which is not necessary to prove need not be stated." Art. 453, id. states: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense."

When an indictment in a liquor selling case, otherwise regular, names A as a purchaser, it has charged a complete offense against the law in "plain and intelligible words" as required by Art. 451, supra. Everything is therein stated which is required to be proved in order to make out the offense, as is made necessary by Art. 452, supra. The certainty is such as that the judgment rendered will enable the accused to plead it in bar of another prosecution for the offense, as is plainly stated in Art. 453, supra, and these conclusions of law are true whether the proof on the trial shows the sale to have been made only to A or jointly to A, B and C. If on the trial it appear that the sale be to a number jointly, the facts and the law applicable are in accord on the proposition that but one offense is shown to have been committed, and the State having carved once by prosecuting for a sale to one, cannot do so a second time, and this fully protects the accused. A sale of a barrel of whiskey to A, B, C and D jointly is but one transaction and offense and punishable in no greater degree than the sale of a quart to one man, and the State can carve either way it chooses, but can carve only once, and if the well settled rule in theft and other cases be applied, and the law laid down in Arts. 451, 452, 453 and 460 of our C. C. P., supra, be given effect, the allegation of a sale of the barrel to A is sufficient and is sustained by proof of a sale to A, even though the others be shown to have been joint purchasers with him. These propositions are so uncontrovertible to me that I shall discuss them no further but take up the second proposition stated by me in the outset, viz: that there is no fatal variance when the allegation is of a sale to more than one named person and the proof shows a sale to only one of such parties. This seems to be the case before us. Whether on the facts it is so, may be later discussed by me but at present I address myself to the legal principle involved.

Most of the cases cited by my Brethren, save some liquor cases which I shall analyze later, are those involving allegation and proof of ownership of property in theft cases. Such are Hernandez v. State, 43 Tex.Crim. Rep.; Franklin v. State, 53 Tex.Crim. Rep.; Grantham v. State, 59 Tex. Crim. 556; Tanner v. State, 50 S.W. Rep. 347; Hardman v. State, 58 Tex.Crim. Rep.; York v. State, 42 Tex.Crim. Rep.; Coleburn v. State, 61 Tex.Crim. Rep.; Butler v. State,83 Tex. Crim. 354; Bergfeld v. State, 85 Tex.Crim. Rep.; Barton v. State, 88 Tex.Crim. Rep.; Pate v. State, 91 Tex. Crim. 471. In regard to the principle involved in theft or robbery cases such as these named, it is fundamental that when the indictment alleges the stolen property to belong to A, B and C, or that the assault was made on A, B and C and they be put in fear of life, etc., by which means property was obtained from A, B and C in a robbery case, — it is both in reason and law that the indictment must further allege that the taking in the theft case, or the purpose of the assault, in a robbery case, was to take the property without the consent or against the will of said A, B and C, the owners.

The want of consent of the owner, if one be alleged, — or of the owners if more than one be pleaded, must be proved on the trial, else the State's case fails for the sound reason that it has not made proof of a necessary element of the offense, i.e., the want of consent of the alleged owner or owners. This plain and obvious difference exists between such cases and the case before us, and clearly distinguishes them in principle. In theft cases the pleader must allege the want of consent of all those stated in the indictment to be owners of the stolen property, else his pleading is bad in a fundamental matter for which the case will be stricken from the docket. In other words if he does not allege want of consent of all those named as owners, he has not complied with Art. 452, supra; he has not alleged that which is necessary to be proved as required in Art. 453, supra. For it is equally fundamental that what is necessary to be alleged, must be proven.

The Pate case, supra, (opinion by the writer hereof and cited by my Brother Morrow in his concurring opinion) was a robbery case in which the learned trial judge told the jury that if they believed that the accused made an assault on C and H, or either of them, and by violence to said C and H, or either of them, and by putting said C and H or either of them in fear of life or serious bodily injury, did take from said C and H, or either of them, against the will of said C and H, or either of them, corporeal personal property belonging to said C and H, or either of them, etc. The principle involved in both the Barton and Pate cases, supra, is not that which would govern an ordinary assault or murder case, but was and is that arising from and applicable in all theft and robbery cases where the accused is entitled to an acquittal if the record shows that he took the property with the consent of either of several alleged owners, or of several alleged assaulted parties; or in which the State has failed to sustain its allegation that the property was taken without the consent of all the alleged owners, or all the alleged assaulted parties. The writer knows of no assault case or murder case where the accused was charged with assaulting two or more, or with having killed two or more, — and the proof showed an assault only on one, or the killing of only one, wherein this court has held it a fatal variance. Quite the contrary. In Scott v. State, 46 Tex.Crim. Rep., a case wherein the accused was charged with assault to murder two named parties, and he contended there should be proof of the assault on both, or that there would be a fatal variance, this court, speaking through Judge Henderson, said:

"He contends that the averment that both were shot at is essentially descriptive matter in the indictment, and must be proved as laid. In our opinion this contention is not correct. No more than it would be correct to say that, because the pleader in a case of cattle theft had charged the theft of two or more head of cattle, and had failed to make proof of the theft of all the cattle charged, that there was a fatal variance. An assault on one person, or killing of one person, is a complete offense, and any essential description as to any person alleged to have been assaulted or killed must be proved as laid; but it by no means follows that because an assault is alleged to have been committed on two persons, or two persons are alleged to have been slain, that therefore, before a conviction could be had, both assaults, or both homicides must be proven as alleged. The doctrine contended for by appellant was announced in State v. McClintock, 8 Iowa 203. But according to Mr. Bishop this is not the correct view. He says: 'In reason an assault on A and B is an assault both on A and likewise on B; and when it is proved as to one a complete offense appears equally in the evidence and in the allegation.' 2 Bish. Crim. Proc., sec. 60, and see vol. 1, sec. 437. This doctrine is illustrated in Commonwealth v. O'Brien,107 Mass. 208. There it was said: 'It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified, although he is not shown to have been guilty of all that is charged against him.' This, in our opinion, is in accordance with sound legal principle. The court, therefore, did not err in instructing the jury as was done."

In Nite v. State, 41 Tex.Crim. Rep., the indictment charged the killing of B and L. The proof showed that B only was killed. This was held no fatal variance. In Terry v. State, 62 Tex.Crim. Rep., the indictment charged an attempt to kill two named parties. The proof showed an attempt to kill only one and the court below submitted in its charge the question of attempt to kill only one, and we held it no error. It seems to me that to cite the Barton and Pate cases, supra, as upholding any contention on the part of my Brethren, that a charge of ordinary assault or of murder against two persons, cannot be sustained unless the proof shows such assault on both or the killing of both, is to entirely ignore the real point in each of said opinions and seek to give to expressions therein, especially in the Pate case, a meaning not intended and not reflecting the real points sustained by this court.

Having thus attempted to distinguish between the principle involved in theft and robbery cases, and to show the reason for the holding in such cases, and its entire lack of application here, I now state that by using the names of other alleged purchasers of liquor, after naming one, adds no essential element of the crime of illegal liquor selling, and that if proof of a sale to one so named, is made, then proof as to the sales to the others may be entirely omitted without affecting the charge against the accused and without detriment to the indictment; and that unless such allegation come under the head of an unnecessarily minute description of the offense, it may be entirely disregarded as surplusage. In the early case of Mayo v. State, 7 Tex. Crim App. 340, an opinion written by Judge White, occurs the following:

"But allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. United States v. Howard, 3 Summ. 12. And where an indictment contains matter unnecessary to a description of the offense, it may be rejected. The State v. Coppenbury, 2 Strobh. 273. Again, if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code. Coleman v. The State, 2 Tex. Ct. App. 512; Burke v. The State, 5 Tex. Ct. App. 74. A variance in the name in an indictment will not be fatal if the name be immaterial to constitute the offense and may be rejected as surplusage. 2 East P. C. 593; Roscoe's Cr. Ev. 82. If the name of a person be mistaken in an indictment, and the allegation in which the misnomer occurs be immaterial, so that it may be rejected as surplusage, it will not vitiate the indictment. The Commonwealth v. Hunt, 4 Pick. 252; United States v. Howard, 3 Summ. 12."

This opinion has been cited with approval times without number. In Holden v. State, 18 Tex.Crim. App. 104, an indictment, charging the false packing of a bale of cotton, set out the sale of the cotton to a named party with other details. This court said that the allegation was surplusage, as follows:

"That portion of the information which the court quashed (and which is shown by the italicised portion above noted) can very properly be stricken out and eliminated from the information as mere surplusage, and the remaining portions charge sufficiently and fully one of the offenses denounced by the statute."

In Cudd v. State, 28 Tex.Crim. App. 128, this court said:

"The well settled rule is that allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded."

It seems needless for me to further argue what seems so plain, viz: that a complete offense is constituted by charging that A sold liquor to B, and that no fatal variance occurs in proving that he sold it to B, C and D, and that the reverse is equally true.

Is the allegation that A sold liquor to B, C and D to be held not supported by proof of a sale to B upon the ground that the addition of names of other purchasers comes under the head of words of description which being alleged must be proved? I think not. If an indictment charge a sale of whiskey to B, no element of the offense, viewed from any angle, is added, increased or affected by also charging that the sale was to C and D. The penalty is the same. The elements of the offense are the same. The accused is equally informed by the indictment in either case, that he is charged with a violation of the laws prohibiting the sale of liquor, and the time of the alleged occurrence. Can it be said that while the use of the names of other purchasers in the indictment does not add to or increase the criminality of the offense, or affect any element thereof, still this must be proved as laid because such allegation thus becomes descriptive of the transation, — because said other purchasers were thus made parties to the sale? A sufficient answer would seem to appear by saying that if the indictment alleged that A, B, C and D sold whiskey to E, this would as completely be a statement that they were parties to the sale, — actors in the transaction, — as if they appeared therein as purchasers, but under all the authorities the State would not be held to prove, in such case, that all in fact were present and were concerned in making the sale, in order to make out its case, and to support a conviction when the proof showed that A acting alone did in fact violate the law by so selling.

If an allegation that A took a cow October 1st from Smith without his consent, etc., is not so descriptive of the offense as not to be offended against by proof that he took a steer belonging to Smith, Jones and Brown on February 10th; if an allegation that A took a watch, a knife, a ring and a pistol on July 4th, is sustained by proof that he took only a pistol on December 1st; if an allegation that A assaulted B, C and D on January 1st by striking them with his hands, feet and a piece of iron, is met by proof that A slapped D on August 1st with his hands; if an allegation that A tried to kill B, C and D on September 1st, is not varied from by proof that he only tried to kill C on March 1st; if an allegation that A shot and killed B and C is supported by proof that he shot B only; if an allegation that A sold to B a gallon of whiskey is supported by proof that he sold him a quart or a barrel; if these and innumerable other illustrations which are usable reflect the attitude of this court's opinions and those of the elementary authorities on the question of what is and what is not an unnecessarily minute description and what need not be proven, then I insist that unless we adhere to the holding contended for by my Brethren solely because of former opinions of this court in cases believed by them to be in point, which I shall analyze and discuss, then I insist we should not hold in this case that there is a fatal variance upon the ground that the pleader by alleging a sale to other parties inserted in his indictment an unnecessarily minute description of the offense.

In reviewing the cases cited I will not omit any case cited by my Brethren. Dixon v. State, 21 Tex.Crim. App. 517, discusses an indictment which named no person as the purchaser of the liquor. Holding that a purchaser should have been named, we said that the true rule is as follows:

"There must be some particularity, or what the law calls certainty, in an indictment. The particular act of which the State complains must be set forth in plain and intelligible words, so that the party who is accused may know what he will be called upon to answer, and may be able to prepare for his defense. * * * The transaction of which the party is accused must be identified with reasonable certainty. The indictment, in a case like the present, should name the person to whom the liquor was sold; or, if the name of the person to whom the liquor was sold was unknown to the grand jurors, then other circumstances tending to identify the transaction should be alleged, so that the accused may know what he will be called upon to answer, and so that, in case of conviction or acquittal, he may be able to plead the judgment in bar of another prosecution for the same offense."

It will be noted by the careful reader that all that is said in the quotation above, is summed up in the last part of this statement of the law thus "so that the accused may know what he will be called upon to answer, and so that, in case of conviction or acquittal, he may be able to plead the judgment in bar of another prosecution for the same offense." This same statement of the law is applicable to each of those cases instanced by us in which we sustain convictions and hold it no variance to fail to prove those things stated in an indictment which are not necessary to allege a complete offense. The Dixon case is not authority against my contention in this regard. My Brethren cite Art. 464 Cow. C. P. which merely says that an indictment should name the person to whom the liquor was sold and thus says no more in this regard than does the statute against assault, murder, etc., which requires the name of the injured party to be stated; nor that the statute against theft, etc., which requires the property to be described. Art. 464, supra, relates only to the indictment and appears wholly foreign to the question of variance. However we note that after stating that to be sufficient the indictment should name the purchaser, said article closes with this very significant utterance which my Brethren may have overlooked: "Under such indictment any act of selling in violation of law may be proved." We scarcely need the plain direction of Art. 25 of our C. C. P. which commands that the provisions of the Code be liberally construed so as to attain the objects intended, i.e. the prevention, suppression and punishment of crime, — to support the proposition that when the indictment names the purchaser of the liquor, and Art. 464, supra, says that any act of violating the law against selling liquor, which under ordinary rules of construction would be embraced by the allegation may be proved, the act of selling to three jointly would support a conviction. Suppose the allegation be of a sale to one. Would not this allege every element of the offense? This is not made less true by proof of a sale to two. What does Art. 464, supra, mean when it says: "Any act in violation of law may be proved"? My Brethren cite Tanner v. State, 50 S.W. Rep. 347, which seems to me to have no application whatever. Sheep were caused to go into an enclosure. The pasture belonged to two. The indictment alleged entry without the consent of one. The court held it should have alleged without the consent of either, and the principle is akin to that in theft cases. O'Shennessey v. State, 49 Tex.Crim. Rep., is cited. This decision was rendered in 1906, and the indictment alleged a sale to two, and the court's charge authorized conviction on proof of a sale to one. This case seems authority in support of the instant case and will be later referred to and discussed. Price v. State, 83 Tex. Crim. 322, is cited. This is a case on facts similar to the present, being a case in which four men chipped in fifty cents each and went together and purchased a bottle of whiskey from appellant. The court's charge is criticised for instructing the jury that a conviction could be had on proof of a sale to one where the allegation was of a sale to four, but this court, in an opinion by the present Presiding Judge, said: "The evidence, however, is undisputed that the sale, if made by appellant, was made to all four parties named in the indictment; that they were together, all interested in the purchase, and all furnished their pro rata of the money. This being true, under Art. 743 Cow. C. P., * * * the error of the charge is harmless," and the case was affirmed. There was no proof as to which one did the talking for the four, but I shall refer to this case later.

Ellington v. State, 86 S.W. Rep. 330, is also cited. Its facts show that four parties went to an express office where a C. O. D. shipment of liquor had been sent to one of them, who had not ordered it. Each there contributed his part of the $3.50 C. O. D. The package was there delivered by appellant who was the agent of the express company, upon payment of the money by all of them, to the man named as consignee. The package was opened in the express office and each man took one of the four bottles of liquor therein. The indictment charged a sale by the agent to all four of the men. This court said: 'It is necessary for the indictment to allege the name of the purchaser, and of course it is essential that the evidence should sustain this allegation. We believe the contention well taken." The court then cites Dixon v. State, 21 Tex.Crim. App. 517; Martin v. State, 31 Tex.Crim. Rep.; Henderson v. State, 38 S.W. Rep. 618, and Tanner v. State, 50 S.W. Rep. 347. I have just shown above that neither the Dixon nor the Tanner case appear to be authority. The Martin case referred to was a case in which the indictment charged the sale of liquor and named no purchaser, and the indictment was held bad on authority of the Dixon case, supra. In the Henderson case referred to the indictment charged a sale to Henry Hall and the proof showed a sale to Henry Wall, which was held a variance. This much is said to show that neither of the four cases cited in the Ellington case support the conclusion there reached by the court, and it is difficult to follow the case on its facts to the result announced. The rule laid down by this court in the Price case, supra, would seem to compel the affirmance of the Ellington case. If four men went together to the place where the liquor was and each contributed his pro rata share and each paid same to the agent who thereupon delivered the liquor to one, this would seem to necessarily call for conviction. He could not hand the liquor to all of them. He necessarily had to hand it to one, and it made no difference to which one.

My Brethren cite Yakel v. State, 30 Tex.Crim. App. 391. The only question involved in that case is one of liability for a sale to a minor, it being contended that he was merely acting as agent for his father. Nothing in the opinion affects the proposition before us. They also cite Henderson v. State,39 Tex. Crim. 26. This case is on the same point as the Yakel case and on its authority is decided. There is nothing in it shedding any light upon the matter at issue here. They also cite Sessions v. State, 98 S.W. Rep. 243, decided the same year as O'Shennessey v. State, supra. In that case occurs the following language: "The complaint and information charge the sale as having been made to Dude Noble and Hugh Foster of the whiskey in question. The proof showed a sale alone to Noble. Appellant claimed a variance and asked a charge to that effect. This should have been given." This case also seems authority for the position taken by my Brethren and will be referred to later. They also cite Arnold v. State, 47 Tex.Crim. Rep., an examination of which reveals the indictment alleged a sale to Shufford and the proof showed a sale to Norton alone, which was properly held to be a variance. They also cite Tippett v. State, 53 Tex.Crim. Rep., but the case reveals one in which there was an allegation of a sale to Whitman and the proof showed either a gift of the whiskey or its sale to Roberson. Citing Arnold case, supra, the court correctly held this a variance. They also cite West-brook v. State, 88 Tex. Crim. 223, but examination shows that this case involves only the right of one who is convicted in one case for selling liquor and has appealed it, to have another case pending, — also charging a sale of liquor claimed by the accused to have been the same act and transaction as the one on appeal, — continued until the appeal is decided so that he may plead former conviction.

I have thus carefully and accurately reviewed each case cited by my Brethren and only two of them, viz: O'Shennessey v. State, 49 Tex.Crim. Rep., and Sessions v. State, 98 S.W. Rep. 243, are in point and uphold the contention, and neither of these decisions analyze the doctrine involved nor cite any authority for the holding of the court. Each opinion shows other errors beside the one under discussion, and neither case is reversed for the matter of variance. I am firmly of the belief that had either of the great judges who rendered those opinions been called on to compare such holdings with those of this court in cases involving the same principles, — or to analyze the question of variance in the light of what text books say and what this court had said in other cases, and what true reasoning would seem to dictate, they would not have announced the conclusion reached by them. To charge a sale of intoxicating liquor to C and B, necessarily charges a complete sale to C, and to prove a sale of intoxicating liquor to C necessarily proves every element of the offense, and to hold that the court may not properly reject the added sale alleged as surplusage, seems to me to ignore all of the holdings of this court in similar matters to that here discussed. I am of opinion that my Brethren, who like myself entertained great respect and reverence for the opinions of our able predecessors, have accepted the soundness of the contentions discussed upon the ipse dixit of the O'Shennessey and Sessions cases and others not involving the same point as appear in those cases, which however cite them, — and by such acceptance, after full consideration, are in danger of establishing a precedent at variance with all our other holdings — at variance with all the text writers, and which will cause hardship in the due administration of justice. What I have said is chiefly a citation of authorities and a discussion of the principle involved, and for the reason that I am unable to distinguish between the holdings in all the other cases, and that I believe the O'Shennessey and Sessions cases to be wrong in the matters discussed, I am compelled to respectfully record my dissent from the conclusions reached in this case and some other cases involving the same principle this day handed down.

On the facts of the instant case I would further take issue with my Brethren on the ground that the record shows that all three of the parties named as purchasers of the liquor in the indictment were present at the time and place of purchase, went there under an agreement to go and buy the whiskey; two of them did the talking while the third remained in the car, and the liquor was taken and divided by all. No money was then paid but later each contributed his proportionate part and the next day the full purchase price was paid to appellant. These facts are almost identical with those in the Price case, supra. I cannot conceive it to be the law that when a group of men each chip in his part and go to where the liquor is, and the money is there and then or thereafter paid by one for all, that because one orders the drinks and hands over the money, the seller can only be punished under an indictment charging a sale to one. Can it be said that when a sale to two or three is charged, the proof must show that each was not only present but must take part in the conversation and personally negotiate with the accused. Such a doctrine would not be upheld for a moment if the action was to recover the price or to have the transaction declared a sale to all of them. Will it be contended that one may not speak for all when they act together in the purchase, all receive their part of the proceeds and pay their part of the price. This seems to substitute the shadow for the substance; to render nugatory the provisions of Art. 25 of our C. C. P. which as above stated, commands that the provisions of the Code shall be liberally construed so as to attain the objects intended by the legislature: the prevention, suppression and punishment of crime. The indictment in this case charges every element of a crime and fully apprises the accused of the charge against him, and contains no unnecessarily descriptive details, and upon proof such as appears in this record I believe the conviction should be upheld.

Believing the original opinion correct, I think the motion for leave to file second motion for rehearing should be overruled.