252 S.W. 509 | Tex. Crim. App. | 1923
Lead Opinion
Appellant was convicted in the District Court of Morris County of a conspiracy to commit a felony, and his punishment fixed at two years in the penitentiary.
There is but one bill of exceptions in the record which contends that the indictment was insufficient for not alleging that appellant and his co-conspirators did not have a legal permit authorizing them to manufacture intoxicating liquor. We deem the contention without merit, and have held that if one manufactures intoxicating liquor for one of the excepted purposes, the fact that he has no permit does not penalize him. Burciago v. State, 88 Tex.Crim. Rep.; White v. State,
There seems no question of the purpose of appellant to unlawfully manufacture intoxicating liquor. The State's case shows beyond question that he and others were engaged in preparation for such manufacture, carried to the point of putting in place and getting ready the instruments and machinery for same. Appellant testified admitting his own preparation for such manufacture and purpose so to engage, but denying participation therein by an other person. The evidence offered on behalf of the State justified the conclusion of the jury that other persons were so engaged with him in such preparation and their further conclusion of a conspiracy to perform the act made a felony by the statute.
Finding no error in the record, the judgment will be affrmed.
Affirmed.
Addendum
In his motion for rehearing appellant insists that the indictment is fundamentally erroneous in that it failed *3 to charge that the purpose of appellant and his alleged co-conspirators in the unlawful manufacture of liquor was not within one of the exceptions contained in the Dean law. In other words, while it is admitted that it is not necessary for an indictment charging directly the unlawful manufacture of intoxicating liquor, under the present statutes, to allege that same was not for sacramental, scientific, medicinal or mechanical purposes, — still it is insisted, in alleging a conspiracy to commit such felony, the indictment should negative the exceptions contained in the statute. Our examination of the authorities does not lead us to accept the appellant's conclusion in this regard. All of the authorities in this State seem to hold that it is not necessary in alleging a conspiracy to commit an offense, to allege the offense intended with even the fullness or particularity necessary in an indictment charging only the commission of the offense thus said to be in contemplation. This rule will be found announced in the early case of Brown v. State, 2 Texas Crim. App. 115, and seems to have been followed in the few cases charging this offense. This being the only question raised on appeal, and not being able to agree to the position of appellant, the motion will be overruled.
Overruled.
