Smith v. State

In this case, the information charged appellant with having sold whisky, beer, wine, and ale. The testimony was that defendant sold a patent medicine, known as "American Elixir." It is a fundamental principle of justice and law that a defendant cannot be charged with one offense and convicted of another. There was therefore a fatal variance between the allegations in the information and the testimony in this case. If the information had charged that appellant had sold a patent medicine, known as "American Elixir," and that the same was intoxicating, or that it was used as a substitute for intoxicating liquor, and that it contained as much as one-half of one per cent. alcohol, and the proof had shown that such patent medicine came within the provisions of the prohibitory liquor law, then a case would have been made against appellant.

The Attorney General has filed a confession of error in this case. The confession of error is sustained. The judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.