
    Joe Manicchia v. State
    No. 31,972.
    May 25, 1960
    Motion for Rehearing Overruled June 25, 1960
    
      
      J. P. Moseley, Dallas 2, for appellant.
    
      Henry Wade, Criminal District Attorney, Jack Pevehouse, Dan Stansbury, Phil Burleson, Assistants District Attorney, Dallas, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The offense is selling beer during prohibited hours; the punishment, a fine of $200.

The complaint and information alleged that appellant sold beer to Rupert Lloyd Sessions on Sunday between the hours of 1 o'clock A.M. and 1 o’clock P.M.

The alleged purchaser did not testify.

A police officer testified to facts sufficient to sustain a finding that appellant sold 14 cans of beer to a man who identified himself to the officer as Ruford Lloyd Sessions.

The complaint and information alleging the sale of beer to Rupert Lloyd Sessions, evidence of a sale to Rupert Lloyd Sessions would be insufficient because of the variance, “Rupert” and “Ruford” not being idem sonans. 23 Tex. Jur. 685, Sec. 70; Chaney v. State, 59 Tex. Cr. R. 283, 128 S.W. 614; Albidrez v. State, 158 Tex. Cr. R. 229, 254 S.W. 2d 522; Marshall v. State, 157 Tex. Cr. R. 340, 248 S.W. 2d 931.

The judgment is reversed and the cause remanded.  