Jones v. State

ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.

MORROW, Presiding Judge.

Appellant insists that since the subject of variance was first discussed in the motion for rehearing an opportunity should be afforded to combat the views of the court in a second motion for rehearing.

In an indictment charging the sale of intoxicating liquor, the name of the purchaser, if known, is an essential averment. See Hoover v. State, 259 S. W. 1088. And with the averment the proof must correspond; otherwise there will be a variance fatal to the prosecution. See Wharton’s Cr. Ev. 10th Ed., Vol. 1, sec. 94. It is…