
    BELL v. STATE.
    (No. 6116.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1921.)
    Criminal law <&wkey;I ¡86(4) — intoxicating liquors <&wkey;222 — Indictment held sufficient, though using “and” instead of “or” between the words “scientific” and “sacramental.”
    Under the Dean Law, prohibiting the sale of intoxicating liquors, the use of the word “and” between the words scientific and sacramental, in an indictment instead of “or,” in negativing the statutory exceptions, does not render the indictment void in view of Code Cr. Proe. 1911; art. 476, providing that indictments shall not be held insufficient for defects or imperfections not prejudicing the defendant’s substantial rights, particularly since such words may be used interchangeably and such use places no additional burden on the defendant, the state being required to prove that a sale was not under any of the statutory exceptions (citing Words and Phrases, And).
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Or.]
    Appeal from District Court, Camp County; J. A. Ward., Judge.
    Elmo Bell was convicted of selling intoxicating liquor in violation of the Dean Law, and he appeals.
    Affirmed.
    J. D. Bass and C. G. Ehgledow, both of Pittsburg, for appellant.
    C. M. Cureton, Atty. Gen., and Walace Hawkins and Tom) L. Beauchamp, Asst Attys. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Camp county of selling intoxicating liquor in violation of the Dean Law, Acts Second Called Session 36th Legislature, page 228/ and his punishment fixed at confinement in the penitentiary for a period of one year.

There is no statement of facts in the record, and but one question is here presented. In negativing- the statutory exceptions the indictment uses the conjunction “and” between the words “scientific” and “sacramental,” and by motion to quash appellant urged that this rendered the indictment void. We do not think so. It is provided by our Code of Criminal Procedure, article 476, that an indictment shall not be held insufficient by reason of any defect or imperfection) of form which does not prejudice the substantial rights of the defendant. It has been held in many cases which might be cited, that the word “and” and the word “or” may often be used interchangeably. Words and Phrases, vol. 1, p. 395. Ex parte Meckel, 220 S. W. 81. As we view it the insertion of the word “and” in the indictment in place of the word “or” as same is used in the statute in enumerating the exceptions only places an additional burden on the state, which in such case would have to show that accused not only sold intoxicating liquor, but that he sold it under none of the exceptions named. We do not think this would prejudice any substantial right of the defendant. Under bur decisions the burden is not on the defendant to prove that the sale was made under some one of the named exceptions, and that he is therefore not guilty, but is on the state to prove that it was not under any of them. The question as to the character or quantity of proof required is one for the jury in each individual case.

The Byrd Case, 72 Tex. Cr. R. 242, 162 S. W. 360, is the only authority cited by appellant, and is not in point, as same comes under the well-settled law of decisions wherein the prosecutions were for failures or omissions to perform some duty.

Finding no error in the record, the judgment of the trial court will be affirmed. 
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