Travinio v. State

MORROW, Presiding Judge. — Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for two years. The record is before us without statement of facts or bill of exceptions. *141 Appellant filed a motion to quash the indictment, which was overruled, and in the motion for new trial, he complains of the action of the court in so doing. Omitting the formal parts, the indictment reads thus: “. . . in the County of Kerr and State of Texas, did then and there unlawfully sell one bottle of spirituous, vinous and intoxicating liquor capable of producing intoxication, to one Vernon Cochran, against the peace and dignity of the State.” The criticisms present the idea that the words ‘ ‘ spirituous, vinous and intoxicating liquor” do not specifically describe the offense, that is, do not inform the appellant of the nature of the intoxicating liquor with the sale of which he is charged. The statute upon which the prosecution is founded declares that “it shall be unlawful for any person, directly or indirectly, to sell spirituous, vinous, or malt liquor, or medicated bitters capable of producing intoxication, or any other intoxicant whatever.” (See Acts of the 37th Leg., Chap. 61, Sec. 1, 1st Called Session). The indictment follows the language of the statute, which, speaking generally, is sufficient, (Branch’s Ann. Tex. Penal Code, Sec. 494) though if the averments are descriptive of the offense, they, must be proved as laid. Branch’s Ann. Tex. Penal Code, Sec. 498; also Todd v. State, 89 Texas Crim. Rep., 99, 229 S. W. Rep., 515. “Where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, and are not repugnant to each other, they are not distinct offenses but different phases of the same offense, and may be charged conjunctively in the same count.” Branch’s Ann. Tex. Penal Code, Sec. 508, and cases there collated. Apparently,, this principle obtains in the instant case. The offense denounced by the statute is the unlawful sale of intoxicating liquor. Whether the liquor sold be spirituous, vinous, or malt, it still bornes within the general definition of sale of intoxicating liquor. A very full discussion of the authorities upon this subject wll be found in Todd’s case, 89 Texas Crim. Rep., 99, 229 S. W. Rep., 517, in which it was held that under Chap. 78 of the Acts of the Thirty-sixth Legislature, 2nd Called Session, an' indictment was duplicitous which charged that the accused did receive, transport, export, deliver, solicit, take orders for and to furnish spirituous, vinous, or intoxicating liquors, each of these being distinct offenses as contradistinguished from different methods of committing the same offense. In our judgment, the indictment in the instant ease was not obnoxious to the rule against duplicity. The facts not being before us, we must, in support of the judgment, presume that they correspond with the averments. Another point made against the indictment is that it did not negative the exceptions. Under Chapter 78, supra, certain exceptions *142 were embraced within the definition of the offense. In an indictment drawn under that statute, the law required that the exceptions be negatived. Robert v. State, 90 Texas Crim. Rep., 133, 188, 234 S. W. Rep., 89. The statute was amended, however, being embraced in Chap. 61, supra, Acts of the Thirty-seventh Legislature. The exceptions there are not in the definition, but are in a separate subdivision of the statute rendering it unnecessai~y to negative them in the indictment. The judgment is affirmed. 4jfirmed,