HEAD, Justice.
1. It is contended by the defendant that there is a fatal variance in the allegata and probata, in that the accusation charged the defendant with operating a motor vehicle under the influence of intoxicants on a public highway, known as State Route 49, and there was no proof that the highway on which the alleged offense was committed was a public highway.
"Allegations in an indictment wholly foreign to any element in the offense charged may...
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