
    Ex parte MITCHUM.
    (No. 6772.)
    (Court of Criminal Appeals of Texas.
    Feb. 1, 1922.)
    1. Indictment and information <@=587(8) — Indictment held to charge a violation of the prohibition act of the Thirty-Seventh Legislature.
    Indictment charging that defendant unlawfully had possession of intoxicating liquors for the purpose of sale, filed after Acts 37th Leg. (1921) 1st Called Sess. c. 61, § 1, had taken effect, held to charge a violation of such statute, and not of Acts 36th Leg. (1919) 2d Called Sess. c. 78, § 1, notwithstanding that date specified in indictment as time when offense was committed was prior to the time when such former statute took effect.
    2. Indictment and information <@=»87(l) — Averment of date generally not matter of substance.
    Generally the averment of the date of the offense in an indictment is not a matter of substance.
    3. Habeas corpus <©=4, 30(2) — Irregular or insufficient indictment not ground' for issuance, and remedy is by appeal.
    Where indictment was presented in court of competent jurisdiction by a grand jury regularly organized, and where there was a law in being under which the prosecution could be maintained, an irregular or insufficient averment of the facts did not entitle accused to a writ of habeas corpus, and his remedy was to invoke the ruling of the trial court and to appeal if the ruling was against him.
    4. Intoxicating liquors <§=>132 — Statute prohibiting possession of intoxicating liquor held not repealed.
    Acts 36th Leg. (1919) 2d Galled Sess. c. 78, § 1, making it a crime to have possession of intoxicating liquor except “for medicinal, mechanical, scientific or sacramental purposes,” held not repealed by Acts 37th Leg. (1921) 1st Galled Sess. c. 61, § 1, the effect of the latter statute being merely to change the definition of the offense, so that the possession, to be unlawful, must be for the purpose of sale, and not for medicinal, mechanical, scientific, or sacramental purposes.
    5. Habeas corpus <@=33 — Defendant.granted writ on ground of former jeopardy.
    The defendant will not be granted Writ of habeas corpus on a plea of former jeopardy; such question being one for the trial court during the prosecution under the indictment.
    Original ex parte application for writ of habeas corpus by Doc Mitchum.
    Application denied.
    R. E. Taylor, of Fort Worth, and Benson & Benson, of Bowie, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

This is an origin.al application for writ of habeas corpus.

The indictment of the appellant, filed, December 7, 1921, contains the following averment:

“ * * * That Dock Mitchum, on or about the 1st day of September, A. D. one thousand nine hundred and twenty-one, and anterior to the presentment of this indictment, in the county of Wise, and state of Texas, did then and there unlawfully have in his possession for the purpose of sale intoxicating liquor, said intoxicating liquor not then and there being in possession of said Dock Mitchum for scientific, medicinal, mechanical, or sacramental purposes.”

Prior to the 15th day of November, 1921, the possession of intoxicating liquor was prohibited except “for medicinal, mechanical, scientific, or sacramental purposes.” See Acts of 36th Deg. 2d Called Sess. c. 78, § 1. On the date mentioned there became effective an amendment to the statute by which said section 1 was rewritten so that it read thus:

“That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, take orders for, solicit, or furnish spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicant whatever, or any equipment for making any such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited.” Acts 37th Leg. 1st and 2d Galled Sessions, c. 61, § 1.

In another section of this act, the legality of the possession of such liquors for sale for medicinal,, mechanical, scientific, or sacramental purposes was recognized.

Appellant asserts that the amendment operated to repeal section 1 of chapter 78, supra, and that in consequence of such repeal he is entitled to release for the reason that pn September 1st, the date that the offense was alleged to have been committed, the offense was not denounced by the law of the state. If appellant’s claim touching the repeal of said section 1 of chapter 78 was true, then the result stated would not necessarily follow, for the reason that section 1 of chapter 61, supra, was in effect for some 20 days before the indictment was filed, and an offense under that section is manifestly charged. Generally speaking, the averment of the date of the offense in an indictment is not a matter of substance. Sanders v. State, 26 Tex. 119, and other cases listed in Branch’s Ann. Texas Penal Code, § 439.

The indictment having been presented in a court of competent jurisdiction by a grand jury regularly organized, and there being a law under which the prosecution may he maintained, an irregular or insufficient averment of the facts does not entitle the accused to release under a writ of habeas corpus. His remedy for such defect is to invoke the ruling of the trial court and present to this court on appeal if the ruling is against him. Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637, and cases therein cited.

In our judgment, however, the effect of rewriting section 1 as it is enacted in chapter 61, supra, whs not to repeal the law denouncing as an offense the possession of intoxicating liquor, but had the effect to change the definition of that offense so that, instead of denouncing as unlawful all possession of intoxicating liquor save that which was for mechanical, medicinal, scientific, or sacramental purposes, it denounced as an offense the possession only of intoxicating liquor which was possessed “for sale,” and not for “medicinal, mechanical, scientific, or sacramental purposes.” This construction, we understand, is supported by authority. Cox v. State, 234 S. W. 531; Ruling Case Law, vol. 25, p. 173; Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121, and other cases cited in Michie’s Encyclopedic Digest of Texas Crim. Rep. vol. 6, p. 172; Ruling Case Law, vol. 25, p. 920, § 17, and cases cited in notes 3 and 4; Vernon’s Texas Crim. Statutes, vol. 1, p. 11, arts. 15, 16, 17, and 18. This change of definition or modification had the effect to continue in force all elements of the offense of possessing intoxicating liquor except such as were omitted in the amendment. Ruling Case Law, vol. 25, p. 173, and other authorities cited above. That is to say, both Under the old and the new law it is an offense to possess intoxicating liquor for sale unless the sale is intended for medicinal, mechanical, scientific, or sacramental purposes. The indictment in the instant case conforms to this construction, and, in our judgment, charges an offense, whether the unlawful possession took place while the old statute or the new one was in force.

Since the passage of the amended statute, in a number of cases charging the unlawful possession of intoxicating liquor, we have held the indictment insufficient to sustain the conviction. See Francis v. State, 235 S. W. 580. In these indictments there was found no averment that the possession was for the purpose of sale. This is essential for the reason that the only possession now made unlawful is that which is for the purpose of sale. The provision making its possession unlawful for other purposes was repealed by the amended statute (section 1, c. 61, supra). In the opinions in some of the cases to which we have referred the reason was stated in terms too broad, the expression being used that the statute denouncing the offense “was repealed.” The conclusion reached in deciding these cases we deem sound, though the language used in announcing it was not accurate. It should have been said that the part of section 1, c. 78, supra, which prohibited' the possession of intoxicating liquor for purposes other than for sale was repealed.

As an additional ground for discharge, relator avers that he has been prosecuted in the United States District Court for the same act upon which this prosecution is founded; that in consequence thereof he is immune from further prosecution. If there exist facts which would support a plea of former jeopardy, it is appellant’s right to present them in the trial court. If the disposition of them there is not satisfactory, he m'ay exercise the right of appeal, and it would then become the duty of this court to determine the merits of his plea and the law applicable thereto. A plea of former jeopardy, however, is not a matter that appellant can present here by an original application for writ of habeas corpus for the purpose of avoiding the prosecution pending in the trial court. Pitner v. State, 44 Tex. 578; Ex parte Spanell, 85 Tex. Cr. R. 304, 212 S. W. 172; Ex parte Jones, 83 Tex. Cr. R. 14, 200 S. W. 1085; Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533.

In a more extended manner, we have discussed this phase of the application in the companion case, No. 6773, 237 S. W. 935.

The application for writ of habeas corpus is denied. 
      <g=jPor- other .oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     