Brown v. State

DISSENTING opinion ON MOTION FOR REHEARING.

LATTIMORE, Judge.

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 surplus-age. Mr. Underhill in the new 3d. Ed. of his work on…