Marshburn v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

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. Cr. R. 240, 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…