
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1910.)
    1. Lotteries (§ 28
      
      ) — Indictment—Variance.
    An indictment charged accused with establishing a lottery for the purpose of disposing of suits of clothes by lot to be disposed of “among the persons who should become the purchasers of tickets therein, which said tickets were then and there issued by ‘accused’ in the form of membership contracts in a club.” The proof failed to show that tickets were issued, but did show that the parties were to pay a dollar a week and when the first dollar was paid a receipt was given. Held, that there was a variance.
    [Ed. Note. — For other cases, see Lotteries, Dec. Dig. § 28.]
    2. Indictment and Information (§§ 120, 167) — Unnecessary Averments — Necessity of Proof — Variance.
    Unnecessary descriptive averments do not vitiate an indictment, but cast upon the prosecution the burden of proving such averments.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 315, 531; Dec. Dig. §§ 120, 167.]
    Appeal from Criminal District Court, Galveston County; E. R. Campbell, Judge.
    J. B. F. Robinson was convicted of establishing a lottery, and appeals.
    Reversed and remanded.
    Brockman, Kahn & Williams and E. T. Branch, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The indictment charged appellant with establishing a lottery. The charging part is as follows: “That J. B. F. Robinson * * * did unlawfully establish a lottery for the purpose of exposing personal property, to wit: Twenty-six suits of clothes, to be by lot and chance of certain drawings, then and there being conducted by him the said J. B. F. Robinson, to be disposed of and distributed to and among the persons who should become the purchasers of tickets therein, which said tickets were then and there issued by the said J. B. F. Robinson, in the .form of membership contracts in a club, then and there instituted, organized and promoted by the said J. B. F. Robinson, which said membership certificates or applications then and there entitled the holder thereof to participate in said drawing, in which suits of clothes were then and there disposed of and distributed by lot and chance.” The second count in the indictment sets out the form of a written application used by the parties in soliciting membership in the club, or rather the form of an application which was to induce the parties to engage in drawing in the lottery or raffle. This count was held insufficient by the trial court. There are several very interesting questions suggested for revision, but under the view taken of the case, we deem it unnecessary to decide those questions.

It will be noticed that the indictment charged that appellant issued tickets to parties who were to draw in the alleged lottery for the suits of clothes. The evidence fails to show that any tickets were issued. In fact, there were no tickets issued. The parties were to pay a dollar a week, and when the first dollar was paid a receipt Was given. Subsequently the dollar a week was collected by some one supposed to be connected with the lottery, but no tickets were issued. It is contended that this constitutes a variance between the allegation and the evidence introduced to support such allegation. We are of opinion this contention is correct. It may have been an unnecessary allegation, but was descriptive, and being descriptive, must be proved as alleged. See State v. Meysenburg, 171 Mo. 1, 71 S. W. 235; Blocker v. State, 73 S. W. 955; Gray v. State, 11 Tex. App. 411; Warrington v. State, 1 Tex. App. 168; Cameron v. State, 9 Tex. App. 332. Unnecessary descriptive averments do not vitiate an indictment, but cast tbe burden upon tbe pleader in tbe prosecution of proving sucb averments. Rogers v. State, 26 Tex. App. 429, 9 S. W. 762; Martinez v. State, 51 Tex. Cr. R. 585, 103 S. W. 930.

It bas also been held that when a person, place, or a thing necessary to be mentioned in an indictment is described with unnecessary particularity, all tbe circumstances of description must be proved, and cannot be rejected as surplusage, for by reason of tbe pleading they are made essential to identity. See State v. Meysenburg, supra; Blocker v. State, supra; Warrington v. State, supra; Rose v. State, 1 Tex. App. 401; Ranjel v. State, 1 Tex. App. 462; Lunsford v. State, 1 Tex. App. 448, 28 Am. Rep. 414; Courtney v. State, 3 Tex. App. 261; Meuly v. State, 3 Tex. App. 383; Collier v. State, 4 Tex. App. 12; McGee v. State, 4 Tex. App. 625; Watson v. State, 5 Tex. App. 27; Allen v. State, 8 Tex. App. 360; Mosely v. State, 9 Tex. App. 137; Cameron v. State, 9 Tex. App. 332; Wallace v. State, 10 Tex. App. 269; Simpson v. State, 10 Tex. App. 681; Gerard v. State, 10 Tex. App. 691; Gray v. State, 11 Tex. App. 411; Davis v. State, 13 Tex. App. 219; Childers v. State, 16 Tex. App. 527; Moore v. State, 20 Tex. App. 279; Stiff v. State, 21 Tex. App. 255, 17 S. W. 726; Coleman v. State, 21 Tex. App. 526, 2 S. W. 859; Withers v. State, 21 Tex. App. 212, 17 S. W. 725; Loyd v. State, 22 Tex. App. 649, 3 S. W. 670; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Evans v. State, 40 S. W. 988; Ward v. State, 21 S. W. 250; Knight v. State, 40 S. W. 383; Neely v. State, 32 Tex. Cr. R. 370, 23 S. W. 798; Hill v. State, 41 Tex. 257; Butts v. State, 47 Tex. Cr. R. 494, 84 S. W. 586; Wade v. State, 52 Tex. Cr. R. 620, 108 S. W. 677; McAllister v. State, 55 Tex. Cr. R. 266, 116 S. W. 582; Snelling v. State, 57 Tex. Cr. R. 416, 123 S. W. 610; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Melton v. State, 124 S. W. 911; Poston v. State, 126 S. W. 1148; Tucker v. State, 128 S. W. 617.

It bas also been beld that if money is unnecessarily described, tbe description must be proved as laid. Statum v. State, 9 Tex. App. 273; Simpson v. State, 10 Tex. App. 681; Childers v. State, 16 Tex. App. 527; Gerard v. State, 10 Tex. App. 691; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Snelling v. State, 57 Tex. Cr. R. 416, 123 S. W. 610; Johnson v. State, 126 S. W. 597; Lancaster v. State, 9 Tex. App. 393.

It bas also been beld if age, color, brand, or sex of an animal is unnecessarily alleged, tbe evidence must correspond with that allegation. Hill v. State, 41 Tex. 257; Lunsford v. State, 1 Tex. App. 448, 28 Am. Rep. 414; Ranjel v. State, 1 Tex. App. 462; Courtney v. State, 3 Tex. App. 261; Allen v. State, 8 Tex. App. 360; Davis v. State, 13 Tex. App. 219; Cameron v. State, supra; Gray v. State, supra; Ward v. State, 21 S. W. 250; Loyd v. State, 22 Tex. App. 649, 3 S. W. 670.

It bas also been beld if a contract is unnecessarily described as express, tbe allegation will not be supported by proof of an implied contract. State v. Meysenburg, 171 Mo. 1, 71 S. W. 235.

If ownership be needlessly alleged, it must be proved as laid. Collier v. State, 4 Tex. App. 12; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Rose v. State, 1 Tex. App. 401.

If an injured party is alleged to be a corporation, the evidence must support that allegation. Tucker v. State, 128 S. W. 617.

If stolen property be unnecessarily described, the description must be proved as laid. Poston v. State, 126 S. W. 1148; Coleman v. State, 21 Tex. App. 526, 2 S. W. 859.

If tbe name, age, or sex of an injured party be alleged, it must be proved. Wallace v. State, 10 Tex. App. 269; Butts v. State, 47 Tex. Cr. R. 494, 84 S. W. 586; Mosely v. State, 9 Tex. App. 137.

Having alleged in tbe indictment that appellant issued tickets to those who were to draw at tbe lottery, as one of tbe means by which the lottery was carried on, it became a descriptive averment, and the evidence should have corresponded witb tbe allegation. This was a descriptive averment and tbe evidence must so show on the trial. Failure in this respect constitutes fatal variance.

For tbe reason indicated, tbe judgment is reversed and the cause is remanded.

McCORD, J., disqualified.  