
    T. E. SMITH v. STATE.
    No. A-1296.
    Opinion Filed February 3, 1912.
    (120 Pac. 1031.)
    INTOXICATING LIQUORS — Illegal Sale — Evidence. Where the information charges that appellant sold whisky,. beer, wine, and ale, a conviction will not be sustained' upon the proof of the- sale of patent medicine. In other words, where an information charges a specific offense, defendant cannot be convicted of another offense.
    (Syllabus by the Court.)
    
      Appeal from Garvin County Court; W. B. M. Mitchell, Judge. .
    T. E. Smith was convicted of violating the prohibitory law, and brings error.
    Reversed and remanded.
    
      R. B. Bozvling and Thompson & Patterson, for appellant.
    
      Smith C. Matson„ Asst. Atty. Gen., for the State.
   EURMAN, P. J.

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.  