Berry v. State , 94 Tex. Crim. 3 ( 1923 )

The indictment charges that the appellant directly and indirectly manufactured intoxicating liquor.

No motion to quash the indictment or in arrest of judgment was filed, but for the first time on appeal it is contended that the indictment is bad because it does not use the word "unlawfully" in describing the offense. The statute makes it unlawful to transport intoxicating liquor; but provides that the appellant may show by evidence that he was transporting the liquor for one of the purposes permitted by the statute, namely, for medicinal, mechanical, sacramental or scientific purposes. (Acts of Thirty-seventh Legislature, 1st and 2d Called Sessions, Chap. 61.) In other words, the statute makes the transportation unlawful prima facie and instances in which it is permissive, defensive. The statute, being in this form, it is believed that an indictment omitting the word "unlawfully" is not subject to the attack directed against it in the instant case. That is, if the omission of the word "unlawfully" renders the indictment defective at all, it is not such a defect as is available after verdict in the absence of a motion to quash. It is true that a void indictment may be attacked at any time, but an informal indictment must be attacked in limine. Smith v. State,81 Tex. Crim. 535, 197 S.W. Rep., 589; Melley v. State, No. 7185, recently decided; Osborne v. State, 93 Tex.Crim. Rep., 245 S.W. Rep., 928.

The indictment charges that the appellant "did directly and indirectly manufacture," etc. The claim that by the use of the words "directly and indirectly" the indictment was rendered repugnant and obnoxious to the rule requiring certainty we think is not sound. If the words "directly and indirectly" which are contained in the statute each refer to a different offense, then the most that could be said against the indictment upon that ground would be that it was duplicitous in that it charged that the appellant manufactured liquor both directly and indirectly. A duplicitous indictment is not bad except against a motion to quash. See Melley v. State, supra. We are inclined, however, to the opinion that the words "directly and indirectly" add nothing to the statute; and the averment charging the unlawful manufacture of intoxicating liquor would be sustained by proof that the manufacture was either by direct or indirect means. In other words, it would be sustained by proof that the accused was either manufacturing the liquor himself or that his connection therewith was such as to bring him within the statute defining a principal offender.

The point made against the indictment in question that it contains no averment as to the percentage of alcohol is not tenable. This court has so held on several occasions. Estell v. State, 91 Tex.Crim. Rep., 240 S.W. Rep., 913; Travino v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 241.

The motion for rehearing is overruled.

Overruled.