Marshburn v. State , 115 Tex. Crim. 523 ( 1930 )

It is axiomatic that the court's instructions to the jury should conform not only to the allegations in the indictment, but also to the evidence. Conceding that under this ruling the court was in error in submitting whether appellant was in possession of vinous and malt liquors for the purpose of sale, we think in view of Art. 666, C. C. P., it by no means follows that a reversal must result. Lee v. State, 97 Tex.Crim. R.,260 S.W. 194 is nearer in point of fact to the case at bar than any other we have discovered.

It is called to our attention that the objection now being urged to the charge was not raised at the time of trial by written objections as required by Art. 658, C. C. P., but was for the first time complained of on the motion for new trial. This was too late. (See Note 60, under Art. 666, Vernon's Tex. C. C. P., Vol. 2.) We have again carefully examined the facts and are confirmed in our views that the error in the charge could not have resulted in injury to appellant.

The motion for rehearing is overruled.

Overruled.