Lee v. State

260 S.W. 194, 97 Tex. Crim. 240, 1924 Tex. Crim. App. LEXIS 270

• Court: Court of Criminal Appeals of Texas
• Decided: February 20, 1924
• Docket: No. 8247.
• Status: Published

Opinions

MORROW, Presiding Judge.

The offense is manufacturing intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The evidence is sufficient to show that the appellant was engaged in the unlawful manufacture of whisky. The indictment charged that the appellant “did then and there unlawfully manufacture spirituous, vinous and malt liquors and medicated bitters capable of producing intoxication, etc.” An indictment couched in this language was held sufficient in Travino’s case, 92 Texas Crim. Rep., 140. In the opinion numerous precedents are cited sustaining the conclusion expressed. Appellant insists that in the absence of evidence to the effect that he manufactured vinous and malt liquor and medicated bitters as well as whisky, there is a fatal variance between the averment and the proof, and cities in his brief numerous authorities to the point that averments descriptive of the identity of that which is legally essential to charge the offense cannot be rejected as surplusage but must be proved. The soundness of this proposition is not called in question. It has often been applied. Branch’s Ann. Tex. P. C., Secs. 256 and 489.

In the present case, the offense is the unlawful manufacture of intoxicating liquors. The manner of committing the offense is by manufacturing spirituous, vinous and malt liquors and medicated bitters capable of producing intoxication. It has been uniformly held that an indictment may set out in the conjunctive various means of committing the same offense. Todd v. State, 89 Texas Crim. Rep., 104; Goodwin v. State, 70 Texas Crim. Rep., 602, and eases cited. The proof of the commission of the offense by any of the means designated in the indictment is sufficient. For example: Robbery may be committed by violence or by putting in fear. All of these may be charged conjunctively as a means descriptive, of the manner in which the offense was committed, but it has never been held that it was necessary to prove that the offense of robbery was committed by vio lence or by putting in fear. It is sufficient to prove either method. So, with burglary; the entry may be made by force, threats or fraud, and the indictment may aver that it was by force, threats and fraud. Proof of either is all that the law demands. So, in charging the furnishing of intoxicating liquor to a minor. The indictment may charge that the accused “did sell and give and cause to be sold and given.” Proof of either method is enough. Hogan v. State, 66 Texas Crim. Rep., 514, 147 S. W. Rep., 601. So, where the averment in the indictment is that several distinct articles were stolen. In Robinson’s case, 62 Texas. Crim. Rep., 645, Presiding Judge Davidson said: “The indictment alleged that it was something over eleven dollars taken, whereas Denke testified it was ten dollars and some cents taken. - That is not a variance. Under the allegation there was eleven dollars and some cents; it will be sufficient to show that any * amount of money was taken. It was not necessary to show that the exact amount stated in the indictment was taken. It is sufficient if any amount was taken.”

So, where one was charged in the indictment with the theft of two geldings. The court said: “The prosecution was not required to prove that the defendant sfole both of the geldings named in the indictment. If the jury were satisfied from the evidence, beyond a reasonable doubt, that he fraudulently took and appropriated to his own use one of them, as charged in .the indictment, it would be sufficient to warrant a conviction.” (Anderson v. State, 2 Texas Crim. App., 11.)

The citation of authorities might be extended. It is believed that the analogy of the .present case is with the illustrations just made and not with those in 'which the unnecessary averments are held descriptive.

The judgment is affirmed.

Affirmed.