Jordan v. State , 37 Tex. Crim. 222 ( 1897 )

Conviction for violating local option law. This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. It is contended in the motion for rehearing that Art. 378 of the Penal Code does not provide a penalty for the sale of intoxicating liquors in a subdivision of a county other than justices' precincts, cities or towns. We have held, and still hold, that it does. See, Ex parte Segars, 32 Tex.Crim. Rep.. It is insisted that a portion of Article 3239 of the local option statute of 1893 is unconstitutional, because it attempts to punish bartering or giving away intoxicating liquors in a local option county, district, etc. The election in this case was upon the proposition as to whether the sale of intoxicating liquors should be prohibited. Concede, for the argument, that the legislature has no right to punish a person for bartering or giving away intoxicating liquors in a prohibited district; still it had the right to punish the sale thereof. It is contended that the indictment is defective because it charges that appellant sold and gave away whiskey. This contention of appellant is supported by the opinion of Judge Willson in the case of Ferguson v. State, 25 Tex.Crim. App., 451. We do not agree to that part of the opinion which holds the indictment to be defective because it alleges a sale and exchange. We can treat the words "exchange or gift" as surplusage, and leave a perfectly good indictment. This is not a case in which the proposition was submitted to the voters to determine whether the sale and the gift of whiskey should be prohibited. The correct proposition was submitted to the voters, to-wit: whether the sale of intoxicating liquors should be prohibited. We cannot agree to the proposition that where in indictment alleges all that is sufficient to constitute a crime, and then proceeds to set forth an act as a crime which is not a crime, therefore the indictment is defective in regard to that part which is properly pleaded. It is not a description of the sale to allege that defendant gave away whiskey. In this case the court charged the jury to convict if they believed defendant sold or gave away the whiskey. This was wrong, but we fail to see how it prejudiced appellant, and there was no exception reserved to the charge. This is a misdemeanor case, and, in order for such objections to avail defendant, exceptions must be reserved at the time. An inspection of the record shows that there was no evidence tending remotely to prove a gift. The testimony is unequivocal that the prosecuting witness bought a pint of whiskey from appellant, and in a few days thereafter paid him fifty cents for the same. Motion for rehearing overruled.

Motion Overruled.