9 S.W.2d 339 | Tex. Crim. App. | 1928
Lead Opinion
The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for one year.
It was charged in the indictment that —
"J. C. Burgess did then and there unlawfully sell to L. C. Cole, intoxicating liquor."
Appellant filed a motion to quash the indictment. One of the objections thereto was that the term "intoxicating liquor" as used in the indictment included liquor containing in excess of one per cent of alcohol by volume as well as liquor capable of producing intoxication, and that the indictment was therefore duplicitous in that it charged a violation in one count of the provisions of Article 667 P. C. as well as those of Article 666 P. C. Appellant's contention is based on the fact that Article 672 P. C. in defining intoxicating liquor expressly provides that the term shall include all liquors referred to in both Articles 666 and 667.
Article 666 prohibits the sale of liquor capable of producing intoxication. Article 667 denounces as an offense the sale of any liquor containing in excess of one per cent of alcohol by volume. Article 672 provides:
"The words 'intoxicating liquor' or 'liquors,' hereafter used in this chapter shall be held to include and comprehend all liquors referred to in the first and second articles of this chapter, and the said liquors prohibited by said articles will hereafter be referred to herein for convenience as 'intoxicating liquors'."
The offenses named in Articles 666 and 667 are not the same. Burley v. State,
There was no attempt upon the part of the pleader to charge a violation of the provisions of Article 667 P. C. It was therefore unnecessary to include an allegation in the indictment to the effect that the liquor alleged to have been sold contained in excess of one per cent of alcohol by volume. Nor can appellant's contention that no offense is charged under the provisions of Article 666 P. C. be sustained. It was expressly alleged in the indictment that the liquor alleged to have been sold was intoxicating liquor. This court has repeatedly held that an allegation to the effect that the accused sold liquor capable of producing intoxication is sufficient and that the failure to state in the indictment that the liquor was spirituous, vinous and malt did not have the effect of invalidating it. Tucker v. State,
No other matters are presented for review. The evidence is sufficient to support the conviction.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
The facts, so far as they bear upon the matters discussed and the legal questions presented, are the same as those involved in the case of Smith v. State, No. 11,444, and reference is made to the original opinion and the opinion on motion for rehearing in that case.
The motion for rehearing is overruled.
Overruled. *497