Manicchia v. State

169 Tex. Crim. 642

Opinion

WOODLEY, Judge.

The offense is selling beer during prohibited hours; the punishment, a fine of $200.

The complaint and information alleged that appellant sold beer to Rupert Lloyd Sessions on Sunday between the hours of 1 o'clock A.M. and 1 o’clock P.M.

The alleged purchaser did not testify.

A police officer testified to facts sufficient to sustain a finding that appellant sold 14 cans of beer to a man who identified himself to the officer as Ruford Lloyd Sessions.

The complaint and information alleging the sale of beer to Rupert Lloyd Sessions, evidence of a sale to Rupert Lloyd Sessions would be insufficient because of the variance, “Rupert” and “Ruford” not being idem sonans. 23 Tex. Jur. 685, Sec. 70; Chaney v. State, 59 Tex. Cr. R. 283, 128 S.W. 614; Albidrez v. State, 158 Tex. Cr. R. 229, 254 S.W. 2d 522; Marshall v. State, 157 Tex. Cr. R. 340, 248 S.W. 2d 931.

The judgment is reversed and the cause remanded.