Franklin v. State , 157 Tex. Crim. 177 ( 1952 )

247 S.W.2d 562 (1952)

FRANKLIN
v.
STATE.

No. 25802.

Court of Criminal Appeals of Texas.

April 9, 1952.

H. F. Grindstaff, Rotan, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.

DAVIDSON, Commissioner.

This is a conviction for unlawfully selling whisky in a dry area, with punishment assessed at a fine of $300 and 100 days in jail.

The information alleges that the sale was made to John Hynd in Fisher County, Texas, a dry area, and contains the additional and descriptive averment that the sale was "on the premises in the City of Rotan, Texas."

Such descriptive averment was unnecessary to charge the offense but, having so alleged, the state assumed the burden of supporting that allegation by the proof.

We fail to find any testimony showing that the sale was made in the "City of Rotan, Texas."

The evidence, in not establishing the allegations of the information, is insufficient to sustain the conviction.

The judgment is reversed and the cause remanded.

Opinion approved by the court.