McClure v. State

296 S.W.2d 263 (1956)

Banta McCLURE, Appellant, v. The STATE of Texas, Appellee.

No. 28599.

Court of Criminal Appeals of Texas.

November 28, 1956.

*264 W. J. Bragg, Memphis, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the sale of whiskey in a dry area; the punishment, a fine of $100.

The information upon which the prosecution was predicated alleged the sale to have been made "on the premises at the Alamo Cafe located at Cleveland and Second Streets, City of Memphis, Texas." This was clearly an unnecessary allegation and should not have been made.

The rule has long been settled, however, that if the pleader makes unnecessary allegations descriptive of the identity of the offense charged it is incumbent upon the State to establish such allegations by evidence. Branch's Ann.P.C., 2nd Ed., sec. 518. See also Hardy v. State, Tex.Cr.App., 283 S.W.2d 234; Dugan v. State, 159 Tex. Cr.R. 364, 264 S.W.2d 120; Franklin v. State, 157 Tex.Cr.R. 177, 247 S.W.2d 562; Daulton v. State, 155 Tex.Cr.R. 335, 235 S.W.2d 165; Staley v. State, 154 Tex.Cr.R. 546, 229 S.W.2d 170; McElroy v. State, 154 Tex.Cr.R. 15, 224 S.W.2d 715.

The State's proof failed to establish that the sale occurred at the place alleged. In fact, the appellant offered evidence, which was not disputed, that the Alamo Cafe was not located at Cleveland and Second Streets but was located at some other place.

The judgment of the trial court is reversed and the cause remanded.