
    WEAVER v. STATE.
    (No. 6837.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    1. Indictment and information @=> 125(2)— Count charging manufacturing and possession of liquor defective.
    Charging the manufacture of intoxicating liquor and illegal possession of it in one count makes the count fatally defective.
    2. Intoxicating liquors <S=ol37 — Possession of equipment for manufacturing intoxicating liquor not illegal.
    Possession of equipment for manufacturing intoxicating liquor is not illegal.
    3. Intoxicating liquors @=5202 — Count charging illegal possession of liquor defective where not aileging.'p<urpose of sale.
    A count charging possession of intoxicating liquor is defective, where the possession is not alleged to be for the purpose of sale.
    4. Intoxicating liquors @=>137 — Possession of equipment for manufacture not illegal under amendment to Dean Law.
    Under the amendment to the Dean Law adopted by the First Called Session of the Thirty-Seventh Legislature» (Veiinon’s Asm. Pen. Code Supp. 1922, art. 588½ et seq.), omitting to make possession of equipment for manufacturing intoxicating liquor illegal, the possession of such equipment is not illegal.
    Appeal from District Court, Cottle County; J. H. Milam, Judge.
    W. K. Weaver was convicted of a felony, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Howard & Barrett, of Childress, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Cottle county of a felony, and his punishment fixed at one year in the penitentiary.

The indictment herein contains three counts, the first of which charges that W. K. Weaver in the counts' of Cottle and state of Texas “did then and there unlawfully manufacture and have in his possession intoxicating liquors,” etc., the second count charging appellant with having in his possession equipment for the manufacture of intoxicating liquor, and the third count charging that appellant did then and there have in his possession intoxicating liquor and equipment for manufacturing such liquor. Since the adoption of the amendment to the Dean Law by the First Called Session of the Thirty-Seventh Legislature in 1921 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), there has been no offense in this state such as possessing equipment for the manufacturing of intoxicating liquor. The Legislature omitted this from their said amendment and thereby repealed the law against possession of such equipment, as has been held by us in several cases. The law against possession of intoxicating liquor was so changed as to make same penal only when had in possession for sbile.

The first count in this indictment is fatally defective because charging in one count both the manufacture of intoxicating liquor and possession of the same. Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515. The second count is defective because relating solely to the question of possession of equipment for the manufacture of such liquor, same being no longer an offense under any law in this state. The third count charges both the unlawful possession of equipment for the manufacture of such liquor, and the possession of such intoxicating liquor, and the former being no longer an offense, and it being now necessary to allege in the indictment that the possession of such liquor is had for the purpose of sale, the last count is also fatally defective.

There being no count in the indictment sufficiently charging any offense against the laws of the state of Texas, we are compelled to reverse the judgment and direct a dismissal of the prosecution, which is accordingly done.  