
    8855.
    ANDERSON v. THE STATE.
    The evidence authorized a finding that the accused sold intoxicating liquor, and that the liquor vas whisky, as charged in the accusation.
    Decided August 3, 1917.
    Accusation of misdemeanor; from city court of Dublin—Judge Elynt. April 17, 1917.
    
      T. P. Hightower, for plaintiff in error.
    
      S. P. New, solicitor, contra.
   Wade, C. J.

The accusation charged the defendant with a misdemeanor, in that he did unlawfully “sell whisky.” There was evidence from which the jury could infer that the intoxicating liquor sold was whisky, and not “gin,” as contended by the accused. The- testimony of several witnesses for the State referred to the liquor sold as “whisky,” it was testified that the defendant sold it as whisky, and one witness said “it was gin whisky;” and, notwithstanding other testimony to the effect that the liquor was gin, there was no such variance between the proof submitted and the allegations in the accusation as to require the grant of a new trial. The court did not err in declining to “exclude all evidence in the ease with reference to the sale of whisky,” on the ground that “the uncontroverted evidence showed that the stuff alleged to have been sold was gin and not whisky.” The uncontroverted evidence did not show that the liquor sold was “gin and not whisky.” Nor did the testimony relating to the two bottles of liquor introduced in evidence clearly establish that the liquor was gin and not whisky, as the witness testifying as to their contents, said merely: “I think this is gin; I think it is gin liquor, it smells like gin; that also smells like gin.”

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.  