
    Frank Joseph Pasquale v. State
    No. 32,381.
    November 23, 1960
    
      Clyde W. Woody, and John J. Broione, Houston 2, for appellant.
    
      Dan Walton, District Attorney, Samuel H. Robertson, Jr., J. R. Musselwhite, Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is under Art. 527, V.A.P.C.; the punishment, thirty days in jail and a fine of $500.

The information alleges that the appellant did “unlawfully engage in the showing of lewd and lascivious motion pictures entitled ‘Bobby Sox.’ ”

A police officer testified that the appellant was in the “change booth” of an arcade containing various kinds of coin operated machines; that he received some “change” from appellant and then put a quarter into one of the machines and it lighted up and a film began to roll and he watched it; and that it took six quarters to see all of the film covering a period of about fifteen minutes.

Art. 527, supra, makes it an offense to engage in the showing and exhibiting of lewd and lascivious motion pictures and it also makes it an offense to show such pictures in arcade machines.

The proof of the use of arcade machines does not sustain the allegation of the use of motion pictures. Therefore, there is a fatal variance between the allegations of the information and the proof which renders the evidence insufficient to support the conviction. 18 Tex. Jur. 682, sec. 68; Hay v. State, 92 Tex. Cr. Rep. 472, 244 SW 531.

The judgment is reversed and the cause is remanded. '

Opinion approved by the Court.  