Opinion
No. 41714.
November 6, 1968.
Appeal from the County Court at Law, Smith County, R. M. Hutchins, J.
Weldon Holcomb, Tyler, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
The conviction is for unlawfully transporting wine in a dry area; the punishment, a fine of $100.
The complaint, drawn under Arts. 666-3a(4) and 666 — 17(13), Vernon's Ann.P.C., charged appellant with unlawfully transporting an illicit beverage, to-wit: wine, in a container to which no tax stamp showing payment of the tax due thereon to the state was affixed, while the information, drawn under Art. 666 — 4(b), P.C., charged appellant with unlawfully transporting an alcoholic beverage, to-wit: wine, in a dry area.
It is apparent that the complaint and the information do not charge the same offense. Such variance is fatal to the information and the conviction cannot stand. See: 30 Tex.Jur.2d 550, et seq., Sec. 12, Indictment and Information. Harden v. State, 62 Tex.Crim. R., 13 S.W. 768.
The judgment is reversed and the cause is remanded.