Hughes v. State , 134 Tex. Crim. 175 ( 1938 )

Appellant contends that his motion to quash the complaint and information should have been sustained because of their duplicity in that they each charged that the appellant on Sunday "did sell and deliver to V. L. Delaney intoxicating liquor, to-wit: whisky, said liquor containing more than fourteen per cent. of alcohol by volume," etc., his complaint being that the sale on Sunday was prohibited, and that the delivery on Sunday was also prohibited, and that the pleader thus charged two offenses in one count.

In Willis v. State, 34 Tex.Crim. Rep., we held: "Where several ways are set forth by which an offense may be committed, and are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count." Again, Judge HURT said in Brown v. State, 38 Tex. Crim. 597,44 S.W. 176: "Duplicity consists in alleging, in one count, separate and distinct felonies; but the rule can never apply when it simply alleges different phases of the same misdemeanor."

It is interesting to note that in the above Brown case the indictment charged Brown with both selling liquor and keeping open a saloon for the purpose of traffic and sale of liquor on Sunday. We further note that selling and delivering on Sunday involve the same transaction, and are punished in the same way, under the same article of the statute, and as thus conjunctively charged, the information is not duplicitous pleading and properly charges a violation of the laws of this State. For further collated authorities see Texas Digest, Vol. 21, page 494.

We think that the further proposition herein advanced relative to a failure to prove that the liquor thus sold and delivered was whisky has been fully discussed in our original opinion herein, and we see no reason for a further discussion thereof.

The motion for rehearing will be overruled.