Jordan v. State

Head, Justice.

It is contended by the defendant that there is a fatal variance in the allegata and probata, in that the accusation charged the defendant with operating a motor vehicle under the influence of intoxicants on a public highway, known as State Route 49, and there was no proof that the highway on which the alleged offense was committed was a public highway.

“Allegations in an indictment wholly foreign to any element in the offense charged may be disregarded as surplusage and need not be proved. The rule is otherwise as to averments which are descriptive of some element in the offense…