
    WALKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.
    Rehearing Denied Nov. 27, 1912.)
    1. Indictment and Information (§ 86)— Venue — Averment—“Then and There.” _
    _ An information charging that in a certain town, voting precinct, and county of the state, while a public election was being held on a certain day, defendant then and there unlawfully and willfully gave to another intoxicating liquor, sufficiently charged, by the use of the words “then and there,” that the offense was committed in the town specified.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. § 86.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 6946 — 6948.]
    2. Intoxicating Liquors (§ 221) — Statutory Offenses —- Negativing Application of Proviso.
    An information charging the giving of intoxicating liquors to another while an election is being held need not state that the defendant is not a druggist, etc.; the proviso of the statute relating to such offense forming no part of its definition.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 240-248; Dec. Dig. § 221.]
    3. Criminal Law (§ 970) — Arrest of Judgment-Defects in Information — Duplicity.
    An information charging a gift of intoxicating liquor while an election was being held was not defective so as to furnish a ground for arrest of judgment because it also charged that the defendant informed the other person of the whereabouts of the intoxicating liquor; it being permissible by the use of the conjunction “and” to allege that a misdemeanor was committed in any of the ways defined by statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.]
    4. Intoxicating Liquors (§ 226) — Evidence' —Creation of Precinct.
    In a prosecution of a defendant charged with giving intoxicating liquor to another while an election was being held in a certain town, precinct, and county of the state, evidence of the orders of the commissioners’ court creating such precinct as well as the fact that the town was in such precinct was admissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282-286; Dec. Dig. § 226.]
    5. Criminal Law (§ 772) — Instructions— Venue of Offense.
    Where, in the trial of one for giving intoxicating liquor to another in a certain town and precinct while an election was being held, an instruction that the jury should convict if they believed beyond a reasonable doubt that defendant committed the offense charged at the time stated could not have been misleading, because it did not require the jury to find that the acts took place in the town and precinct charged in the information.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    6. Criminal Law (§ 814) — Criminal Prosecution — Instruction.
    Nor was such instruction erroneous for failure to state the purpose for which the election was being held, where the information stated that the purpose was to determine whether the sale of intoxicating liquors should be prohibited in the state, and the evidence did not put in issue the legality of the election.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    Appeal from Delta County Court; C. C. Dunagan, Judge.
    Joe Walker was convicted of giving intoxicating liquor to another while a public election was being held, and he appeals.
    Affirmed.
    Patteson & Patteson, of Cooper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under an information alleging that in the town of Cooper, voting precinct No. 1, in the county of Delta, state of Texas, while a public election was being held on July 22d to determine whether the sale of intoxicating liquors should be prohibited in this state, he did then and there unlawfully and willfully give to Henry Nidever intoxicating liquor, etc. When tried, he was convicted, and his punishment assessed at a fine of $200.

The motion in arrest of judgment was not well taken. By the use of the words “then and there,” it was charged that the offense was committed in the town of Cooper. Moreno v. State, 143 S. W. 156; De Los Santos v. State, 146 S. W. 919, and cases cited.

Neither was it necessary for the information to state that appellant was not a druggist, etc. The proviso forms no part of the definition of the offense. Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 789; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073.

The other grounds in the motion — that the information charged both a gift of intoxicating liquor and charged that appellant “informed Nidever of the whereabouts of intoxicating liquor” — present no ground in arrest of judgment. By the use of the conjunction “and,” it is permissible to allege that a misdemeanor was committed in any of the ways defined by the statute. Hart v. State, 2 Tex. App. 39; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Gage v. State, 9 Tex. App. 259; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Lancaster v. State, 43 Tex. 519.

As qualified by the court, bill of exceptions No. 3 presents no error. The information having alleged that the election was held in Coopát, voting precinct No. 1, in the county of Delta, in the state of Texas, the orders of the commissioners’ court creating precinct No. 1 were admissible in evidence as well as the fact that Cooper was in said voting precinct.

The court charged the jury: “If you believe from the testimony in this case beyond a reasonable doubt that the defendant on the 22d day of July, 1911, and you further believe that said day was an election day as alleged in the information in this case, that the said defendant did then and there unlawfully during the said day on which said election was being held as stated in the information willfully give Henry Nidever intoxicating liquor, and the said defendant did then and there inform the said Henry Nidever of the whereabouts of said intoxicating liquor, then, in that event, if you so believe, you should find the defendant guilty as charged herein.” The objection that the charge does not require the jury to find that the acts took place “in Cooper in voting precinct No. 1” is rather hypercritical. When we take the complaint and information in connection with the charge, and the reference therein to the information, it is readily seen that it is impossible for the jury to have been misled, or have thought they were authorized to convict the defendant of an offense committed at any place other than as alleged. The evidence suggests no other place, and shows beyond question that the offense, if committed, was committed in the town of Cooper; consequently, if subject to the criticism of appellant, we would not be authorized to reverse the case under article 723 of the Code of Criminal Procedure.

It was not necessary to state the purpose for which the election was being held in the charge. The information sufficiently stated the purpose, and that it was a legal election cannot be questioned under the evidence.

The other criticisms of the charge and grounds in the motion present no error.

The judgment is affirmed.  