
    (114 So. 600)
    No. 28929.
    STATE v. BRODNAX.
    Oct. 31, 1927.
    
      (Syllabus by Editorial Staff.)
    
    1. Intoxicating liquors <&wkey;223(3) — Evidence of sale of four pints of beer held not admissible, though bill of particulars stated that four quarts had been sold.
    In prosecution for selling intoxicating liquor, evidence that defendant sold four pints of “choc beer” held not inadmissible, though bill of particulars furnished defendant stated that he was charged with selling four quarts.
    2. Criminal law <&wkey;>9l5 — Objection that bill of information was not properly signed held too late when first made after trial by motion for new trial.
    Objection that bill of information was defective, having been signed in blank by district attorney, and later filled in by attorney at law, his personal agent, and not an assistant district attorney or district attorney pro tempore, held too late, when raised by motion for new trial.
    3. Criminal law <&wkey;>970(5) — Objection to sufficiency of signing of bill of information cannot be raised by motion in arrest of judgment.
    Objection that bill of information was signed in blank by district attorney, and afterwards filled in by an attorney at law, who was his personal agent, and not an assistant district attorney, cannot be raised by motion in arrest of judgment.
    Appeal from City Court of Minden, Parish of Webster; A. S. Drew, Judge.
    Henry Brodnax was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    R. D. Watkins, of Minden, for appellant.
    Percy Saint, Atty. Gen., and R. H. Lee, Dist. Atty., of Minden (E. R. Schowalter, Asst. Atty. Gen., of counsel), for the State.
   ROGERS, J.

Appellant was convicted and sentenced on an information charging him with selling for beverage purposes an intoxicating liquor called “choc beer.” Prior to arraignment, he called for a bill of particulars, in which, among other things, he asked to he informed of the quantity of liquor he was ■charged with selling. The state answered that it was four quarts. On the trial of the case, the prosecution was permitted to show, over defendant’s objection, the sale of four pints of beer. This testimony, objection, and ruling form the basis of appellant’s first bill of exception.

Appellant contends that his objection should have been sustained because there is a variance between the allegation of the information and the proof. The rule, however, is to the contrary. It is stated in 33 C. J. § 467, p. 739, in these words, viz.:

“An allegation in an indictment as to the quantity of liquor illegally sold need not be proved as laid, unless the quantity constitutes an essential element of the crime.”

Under the provisions of the statute on which the information against defendant is based, the quantity of intoxicating liquor sold is immaterial. The gravamen of the offense is the sale of liquor, irrespective of the amount, prohibited by the legislative act.

The appellant also contends that the bill •of information on which he was prosecuted is defective, because it was signed in blank by the district attorney, and afterwards filled in by an attorney at law who was his personal agent, and not an assistant district attorney nor a district attorney pro tempore appointed in accordance with law. This issue was raised in the court below by a motion for a new trial and by a motion in arrest of judgment, both of which were overruled and bills reserved.

The information is signed by the district attorney, and is regular in form. Therefore it is not open to attack by the motion in arrest. In so far as the motion for a new trial is concerned, the alleged defect, if it is a defect, in the information was known, apparently, to defendant before he was put on trial. He makes no affirmative showing, in his motion, that such was not the case. He does not allege that neither he nor his attorney knew of the facts set forth therein concerning the signing and preparation of the information prior to his trial and conviction. The case was tried by the special prosecutor, and defendant made no objection thereto nor to the information. If objection had been timely made, it is undisputed that the alleged defect could have been remedied by the district attorney simply resigning the information after the charge had been filled in by his representative. In these circumstances, we think defendant’s objection to the information came too late.

Eor the reasons assigned, the conviction and sentence appealed from are affirmed.  