¶1(dissenting).
¶2The indictment, drawn under Art. 329 P.C., alleged that appellant did: “then and there unlawfully and willfully aid in the escape of James Douglas Daugherty, a prisoner, from the custody of B. W. Ward, who was then and there the duly qualified Sheriff of Van Zandt County, and as such, then and there held in his custody, the said James Douglas Daugherty on an accusation of a felony; and the said Dewey Daugherty, then and there knowing the premises, with the intent to aid in the escape of said prisoner, did then and there unlawfully and willfully smuggle a pistol to a prisoner, James Douglas Daugherty, which said act so done by the said Dewey Daugherty, was calculated to effect the escape from custody, of the said James Douglas Daugherty, against the peace and dignity of the State.”
¶3Article 329 P.C. provides:
“Whoever wilfully aids in the escape of a prisoner from the custody of an officer by whom he is legally held in custody on an accusation of felony, by doing any act calculated to effect that object, shall be confined in the penitentiary not less than two nor more than seven years; and if, in aiding in the escape, he shall make use of arms, he shall be confined in the penitentiary not less than two nor more than ten years.”
¶4The evidence shows that appellant went to the Van Zandt County Jail, where his brother Douglas was a prisoner charged with a felony; that he took money from his brother with which to buy a pistol; that he bought the pistol at a pawn shop in Dallas and took it to his brother, and that a few days later his brother’s cellmate pulled the gun on the sheriff and they both escaped.
¶5The evidence relied upon to prove the allegations of the indictment show a violation of Art. 326 P.C. which provides:
“Whoever shall convey or cause to be conveyed into any jail any disguise, instrument, arms, or any other thing useful to aid any prisoner in escaping, with intent to facilitate the escape of a prisoner lawfully detained in such jail on an accusation of felony, or shall in any other manner calculated to effect the object, aid in the escape of a prisoner legally confined in jail, shall be imprisoned in the penitentiary not less than two (2) nor more than five (5) years. This Article shall also apply to anyone aiding one who has been convicted, and is being lawfully detained in jail, to escape from jail.”
¶6*179Art. 329 P.C., which relates to aiding one charged with a felony to escape from the custody of an officer by whom he is held in custody, and Art. 326 which relates to aiding one charged with a felony to escape from jail define two separate and distinct offenses, with different punishment provided. Mason v. State, 7 Tex.App. 623; 2 Branch’s Ann.P.C. 360, Sec. 911.
¶7The variance between the allegations of the indictment and the proof renders the evidence insufficient to sustain the conviction for violation of Art. 329 P.C.
¶8I respectfully dissent to the affirmance of the conviction.