McBrain v State

McBrain v State
1931 OK CR 275
300 P. 321
51 Okl.Cr. 136
Decided: 06/06/1931
Oklahoma Court of Criminal Appeals

Appeal from County Court, Grant County; J.G. McKelvy, Judge.

Andrew McBrain was convicted of unlawfully selling intoxicating liquor, and he appeals. Reversed.

Drennan & Drennan, for plaintiff in error.

J. Berry King, Atty. Gen., and J.H. Lawson, Asst. Atty. Gen., for the State.

PER CURIAM. 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.

Page 137

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 variance between the allegation in the information and the proof.

The tests of fatal variances are: Was the defendant misled? Will he be protected against future proceedings? Mathews v. U.S. (C. C. A.) 15 F.2d 139.

Whether there was a fatal variance or duplicitous proof may be determined by inquiring whether defendant could plead former jeopardy. Fowler v. State, 20 Okla. Cr. 410, 203 P. 900.

In the case at bar the information alleges that the liquor was sold to R.J. Smith. The proof was that the sale was made to M.E. Smith, a son of R.J. Smith. It is evident that the defendant could not plead a conviction of a sale to R.J. Smith, as each would constitute a separate offense.