
    BERRY v. STATE.
    (No. 7421.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.
    Rehearing Denied March 21, 1923.)
    On Motion for Rehearing.
    1. Indictment and information <S=2Q2(5) — Indictment for manufacture of intoxicating liquor not defective for omitting word “unlaw-, fully.”
    In view of Acts 37th Leg. 1st Called Sess.: (1921) c. 61 (Yemon’s Ann. Pen. Code Supp. 1922, art. 58814 et seq.), relating to the unlawful transportation of intoxicating liquor, an indictment for the manufacture of intoxicating^ liquor is not objectionable after verdict because' it omits the word “unlawfully,” in the absence of a motion to quash. ,
    2. Indictment and information <S==>I33(1) — ‘ Void indictment may be attacked at any time, but informal indictment must be attacked in limine.
    A void indictment may be attacked at any time, but an informal indictment must be attacked in limine.
    3.Indictment and Information <®=>73(l) — intoxicating liquors <©=>209 — Indictment charging defendant with .directly and Indirectly manufacturing intoxicating liquor held not repugnant ' nor uncertain. ‘
    An indictment charging defendant with directly and indirectly manufacturing intoxicating liquor held not repugnant nor uncertain.
    
      4. Intoxicating liquors <&wkey;236(4) — Proof necessary to sustain indictment for directly and indirectly manufacturing intoxicating liquor stated.
    An indictment charging defendant with directly and indirectly manufacturing intoxicating liquor will.he sustained by proof'that defendant was either manufacturing liquor himself, or that his connection therewith was such as to bring him within the statute defining a principal offender.
    5. Intoxicating liquors <§=s>216 — Indictment for manufacture of intoxicating liquor need not aver percentage of alcohol.
    An indictment for the manufacture of intoxicating liquor is not defective because it fails to contain any averment as to the percentage of alcohol.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    E. D. Berry was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    John W. Baskin, McLean, Scott & Sayers, and W.W. Alcorn, all of Fort Worth, for appellant.
    R. G. Storey, Asst. At'ty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor. Punishment fixed at confinement in the penitentiary for a period of two years.

No bills of exceptions or statement of facts are found. No fundamental error has been pointed out or discovered.

. The judgment is affirmed.

On Motion for Rehearing.

The indictment charges that the appellant directly and indirectly manufactured intoxicating liquor. ■

No motion to quash the indictment or in arrest of judgment was filed, but for the first time on appeal it is contended that the indictment is bad because it does not use the word “unlawfully” in describing the offense. The statute makes it unlawful to transport intoxicating liquor, but provides that the appellant may show ,by evidence that he was transporting the liquor for one of the purposes permitted by the statute, namely, for medicinal, mechanical, sacramental, or scien-tifie purposes. Acts 37th Leg. 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.). In other words, the statute makes the transportation unlawful prima facie, and instances in which it is permissive defensive. The statute being in this form, it is believed that an indictment omitting the word “unlawfully” is not subject to the attack directed against it in the instant case; that is, if the omission of the word “unlawfully” renders the indictment defective at all, it is not such a defect as is available after verdict in the absence of a motion to quash. It is true that a void indictment may be attacked at any time, but an informal indictment' must be attacked in limine. Smith v. State, 81 Tex. Cr. R. 534, 197 S. W. 589; Melley v. State (No. 7185) 248 S. W. 367, recently decided; Osborne v. State (Tex. Cr. App.) 245 S. W. 928.

The indictment charges that the appellant “did directly and indirectly manufacture,” etc. The claim that by the use of the words “directly and indirectly” the indictment was rendered repugnant and obnoxious to the rule requiring certainty we think is not sound. If the words “directly and indirectly,” which are contained in the statute, each refer to a different offense, then the most that could be said against the indictment upon that ground would be that it was duplicitous -in that it charged that the appellant ■manufactured liquor both directly and indirectly. A duplicitous indictment is not bad except' against a motion to quash. See Melley v. State, supra. We are inclined, however, to the opinion that the words “directly and indirectly” add nothing to the statute; and the averment charging the unlawful manufacture of intoxicating liquor would be sustained by proof that the manufacture was either by direct or indirect means. In other words, it would be sustained by proof that the accused was either manufacturing the liquor himself or that his connection therewith was such as to bring him within the statute defining a principal, offender.

The point made against the indictment in question that it contains no averment' as to the percentage of alcohol is not tenable. This court has so held on several occasions. Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913; Trevinio v. State (Tex. Cr. App.) 242 S. W. 242.

The motion for rehearing is overruled. 
      ®3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     