Trevinio v. State

MORROW, P. J. 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. 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. 1st Called Sess. c. 61, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¾). The indictment follows the language of the statute, which, speaking generally is sufficient (Branch’s Ann. Tex. Penal Code, § 494), though, if the averments are descriptive of the offense, they must be proved as laid (Branch’s Ann. Tex. Penal Code, § 498; also Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 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.” See Branch’s Ann. Tex. Penal Code, § 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 comes within the general definition of sale of intoxicating liquor. A very full discussion of the authorities upon this subject will be found in Todd’s Case (Tex. Cr. App.) 229 S. W. 517, in which it was held that under chapter 78 of the Acts of the 36th Leg. 2d Called Session (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.), 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 case was not obnoxious to the rule against duplicity. The facts not being before us, we must, in support of the judgment, presume that they corresponded with the averments. Another point made against the indictment is that it did not negative the exceptions. Under chapter 78, supra, certain exceptions 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 (Tex. Cr. App.) 234 S. W. 89. The statute was amended, however, being embraced in chapter 61, supra, Acts of the 37th Leg. The exceptions there are not in the definition, but are in a separate subdivision of the statute, rendering it unnecessary to negative them in the indictment. The judgment is affirmed.