McBrain v. State

Plaintiff in error was convicted in the county court of Grant county of the crime of unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for six months.

The information charged the sale by defendant of half a gallon of whisky to one R. J. Smith. The proof upon the part of the state is that the sale was made to M. E. Smith, who was another and a different person.

Where the information charges the offense to have been committed by one person, and the proof shows that it was committed by another person, there is a fatal…