
    MACKEY v. STATE.
    (No. 4617.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    State’s Rehearing Denied Dec. 21, 1917.)
    1. Intoxicating Liquors <s=>40(3) — Oblense —Indictment—Statute,.
    Where an election on the question of prohibition was carried prior to Acts 31st Leg. (1st Called Sess.) c. 15, making it an offense to pursue the business of selling intoxicating liquors in prohibition territory, that act was applicable, and a defendant might be convicted for such offense. .>
    2. Indictment and Information <©=>125(14)— Carrying on Business — Allegations of Indictment.
    In indictment for following business of selling intoxicating liquors in prohibition territory, allegations that defendant made other and different sales of liquor to persons unknown in violation of law were not improper, and did not render indictment bad.
    3. Intoxicating Liquors <©=>223(2) — Carrying on Business — Issues, Proof, and Variance-Other Sales.
    Under such indictment, whether alleging other unlawful sales to unknown persons or not the state may prove such other sales to show the offense charged.
    4. Intoxicating Liquors <©=>204 — Indictment — Allegations.
    In such indictment, allegation of specific sale was not required to aver that such sale Was “unlawful.”
    5. Intoxicating Liquors <©=>212 — Indictment-Carrying on Business.
    An allegation that defendant unlawfully engaged in such business; and on a certain day before the indictment made one sale to a named person, and on or about that day made one sale to the same person, alleged only one sale, and would be quashed on that ground.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    j. J. Mackey was convicted of following the business of selling intoxicating liquors in prohibition territory, and he appeals.
    Reversed, and cause dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   <PREND'ERGAST, J.

Appellant appeals from a conviction for pursuing the business of selling intoxicating liquors in Denton county, where prohibition was in force.

The only question is the sufficiency of the indictment. Appellant made a motion to quash it oh several grounds. It alleges that prohibition was carried in September, 3002, upon proper election, and that the commissioner’s court so declared and entered an order as prescribed by statute, which was duly published. Appellant contends that because that election was held, carried, etc., prior to the time the Legislature made it an offense by the act of 1909 to pursue the occupation or business of selling intoxicating liquors in prohibition territory, that therefore .the law prescribing this offense was inapplicable, and he- could not be convicted for said offense under said law. This has unifornSly been held against appellant from the first case that arose after the passage of said act down to the present time. It is unnecessary to cite all the cases. The first case was Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; the last Gearheart v. State, 197 S. W. 187, in an opinion by Judge Morrow.

Another ground to quash- was because the latter part of the indictment alleged that appellant made other and different sales of said liquor in violation of said law, to persons to the grand jurors unknown. This is not an improper allegation in an indictment for this offense, nor would, or could, it render the indictment bad. It has uniformly been held that when such an allegation is made, or when not, the state has the right to prove other and different sales td other persons not specifically alleged to show that appellant was engaged in or pursuing such occupation or business. Some of the cases are cited in 1 Branch’s Ann. P. O. p. 681.

After making all proper allegations about the election, that prohibition carried, and the order of the commissioner’s court putting it into effect, publication thereof, etc., it alleged that on or about December 24, 1916, in said county, appellant did unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, which was in full force and effect in said county at the time, and then this:

“And that the said J. J. Mackey did then and there, on or about the 24th day of December, A. D. 1916, in said county and state, and anj tenor to the presentment of this indictment, make one sale of intoxicating liquor to Bud Swanks, and on or about the 24th day of December, A. D. 1916, in said county and state, and anterior to the presentment of this indictment, the said J. J. Mackey did make one sale of intoxicating liquor to Bud Swanks.”

This is the only allegation alleging any specific sales to any person named. Appellant’s attack of this allegation is in two respects: First, he claims that this allegation should have averred that appellant on the date mentioned did make “unlawful” sales to said party. In an indictment alleging this offense, it is not essential to its validity that such word be used. Ikard v. State, 46 Tex. Cr. R. 605, 79 S. W. 32.

The other point he makes is that the language quoted alleges only one sale to Swanks on the date mentioned; that it does not allege two separate and distinct sales to Swanks on the same date. In the opinion of this writer, the language used does aver two sales, and not one only. Condensed it is: And that said Mackey did on or about December 24th make one sale of intoxicating liquor to Swanks, and on or about December 24th make one sale, etc., to said Swanks. Of course, it might have been better in alleging a second sale to have used the word “another” instead of “one” in the latter clause. But this writer’s Associates think his contention on this latter point is correct; that it is not reasonably certain therefrom that this allegation'avers two sales to Swanks on the same date; that the allegation rather seems to be a repetition averring the same sale; that while the first clause clearly alleges a sale on December 24th, the latter part does not allege “another” sale on that date; that if it had been intended by the pleader in the latter clause to allege a separate and distinct sale on the same date, it could have been done in clear and specific language by the use, instead of the word “one,” of “another,” or other words that would have shown that the latter clause was intended to.allege another and different sale than that alleged in the first clause. Martin v. State, 72 Tex. Cr. R. 454, 162 S. W. 1145. They hold the indictment should have been quashed on this ground.

Therefore on the holding of my Associates the judgment is reversed, and the cause dismissed. 
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     