Neill v. State

ON APPELLANT’S MOTION FOR REHEARING.

BEAUCHAMP, Judge.

We adhere to our holding on all the questions discussed in-the foregoing substituted opinion. It is not surprising, however, that among the various complications arising in this case the attorneys for appellant, for the state, and the members of this court themselves have overlooked a question which should have been considered. This question was not noticed by the attorneys for the state and was entirely overlooked by the members of the court.

In his motion for rehearing now before us, appellant calls attention to the charge against him alleging that he sold horse meat “to W. A. Welch for food for human consumption”. There is no allegation in the indictment that he exposed horse meat for sale for human consumption. Consequently he was not charged with that offense. He was adjudged to be guilty of the offense of the “sale of horse meat for human consumption”. To support this the evidence must show a sale for the purpose expressed in the indictment. It is not sufficient to prove that he exposed horse meat for sale contrary to law.

Adverting to the statement of facts upon that point, it is shown that Mr. Welch was a food and drug inspector for the State of Texas, and was so known to appellant. Welch had been in appellant’s place of business many times, and purchased the ground meat which is the subject of this prosecution directly from appellant. The meat was placed in a sample jar in the presence of appellant and sealed by Welch, in the presence of appellant. The sample was purchased for the purpose of determining whether or not it complied with the Texas food and drug law. During the course of the negotiations for the sample appellant asked Mr. Welch if they were still looking for horse meat, to which Mr. Welch replied, “You never can tell.” Welch, testifying for the state, said that he bought the sample to be analyzed and knew that he did not intend to eat it, and testified that he told appellant that he was buying the sample to be sent to the “State Laboratory to be analyzed; that he was buying it for laboratory purposes.” Mr. Gentry, a state witness, was with Mr. Welch at the time he purchased the sample. He also testified that Mr. Welch told appellant that he wanted to buy half a pound of ground meat for laboratory analysis.

With the evidence in the shape' indicated, as shown from the testimony of Welch and Gentry, the allegation in the indictment that meat was sold to Welch for the purpose of human consumption is not sustained. Although the question was not discussed in appellant’s brief, it was properly raised as shown in the transcript. We have a case in which the state alleged one offense and by its own direct testimony disproved the allegation and relied on the evidence for a conviction of an offense not alleged.

Because of the variance between the allegation and the proof, the appellant’s motion for rehearing is granted and the judgment of the trial court is reversed and the cause is remanded.