New Decatur v. Lande

McCLELLAN, J. — Abel Lande was convicted before the mayor of New Decatur, under an ordinance prohibiting the sale, gift, &c., of spirituous or malt liquors to minors. He appealed to the City Court of Decatur, and was there tried de novo before the judge of that court, on a complaint which alleged that said “defendant violated said ordinance by selling malt or spirituous liquors to John Conway, a minor/’ &c., &c. [85] There was some evidence tending to show that Lande indirectly gave a glass of beer to.the minor; but there is no evidence tending in any degree to show that he sold either malt or spirituous liquors to said minor. There is a very marked and essential difference between the act charg’ed and that proved.— Williams v. State, 91 Ala. 14; 8 So. Rep. 668; Coker v. State, 91 Ala. 92. The variance was fatal. There being no evidence of the selling charged in the complaint, and no averment in the complaint of the giving which the evidence tended to show, no judgment could have been rendered for the plaintiff; and the rulings of the judge on questions of pleading and evidence which arose on the trial, and which had no effect on this variance between the averment and proof, were without injury to the appellant; whether erroneous or not. The judgment is affirmed.