
    FIGUEROA v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1913.)
    1. Indictment and Information (§ 137) — Surplusage — Motion to Quash.
    A criminal complaint or information is not subject to a motion to quash because of sur-plusage therein.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    2. Criminal Law (§ 968) — Trial — Motion in Arrest of Judgment.
    The fact that the word “capable,” in a sentence in an indictment for selling liquor charging that-the liquor was capable of producing intoxication, was misspelled "capapble," was not ground for motion in arrest of judgment under Pen. Code 1911, arts. 476, 480, 849, 850, providing that such motion can only be granted for substantial defects; the word having been correctly spelled in the complaint, and the information providing that it was preferred in connection with the complaint.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. §§ 2423-2432, 2435-2444; Dec. Dig. § 968.]
    3.Criminal Law (§ 881) — 1Trial—Verdict.
    Under Code Cr. Proc. 1911, art. 770, providing for a general verdict, a verdict, in a prosecution for selling liquor without a license, “We, the jury, find the defendant guilty as charged, and assess his fine at $300 and 30 days in jail,” was sufficient.
    [Ed. Note. — For other cases, see Criminal Law^Cent. Dig. §§ 2089, 2093; Dec. Dig. §.
    
    4. Intoxicating Liquors (§ 216) — Sale Without License — Complaint — Information-Alternative Allegation — “Malt Liquor’ ’ — ‘ ‘Beer.”
    A complaint for selling liquor without a license was not fatally defective because it alleged that defendant sold “malt liquor or beer” instead of charging a sale of malt liquor and beér, since the terms “malt liquor” and “beer,” as used in Pen. Code 1911, art. 612, prohibiting their sale without a license, are in effect synonymous.
    [Ed. Note. — For other cases, see Intoxicating liquors, Cent. Dig. §§ 230-233; Dec. Dig. 
    
    For other definitions, see Words and Phrases, vol. 5, pp. 4314, 4315; vol. 1, pp. 731-734; vol. 8, p. 7588.]-
    5. Witnesses (§ 370) — Bias — Difficult* with Defendant.
    In a criminal prosecution, tne court properly permitted accused to show that a difficulty had occurred between him and one of the state’s witnesses, but refused to permit proof of the details thereof.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. § 370.]
    6.Criminal Law (§ 1037) — Trial—Misconduct of County Attorney.
    Improper remarks by a county attorney are not reviewable, in the absence of a request for Charges instructing the jury to disregard the remarks, especially where there are no bills showing the facts under which they were made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    7. Criminal Law (§ 800) — Wrongful Sale —Definition of Terms.
    In a prosecution for selling malt liquor or beer without a license as a dealer, the court did not err in omitting to define the terms “occupation” or “business,” neither of which were used in the statute under which defendant was prosecuted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810; Dec. Dig. § 800.]
    8. Criminal Law (§ 304) — Evidence—Judicial Knowledge — Intoxicating Liquors.
    The Court of Criminal Appeals will take judicial notice that beer is intoxicating.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 295iy2; Dec. Dig. § 304.]
    9. Intoxicating Liquors (§ 224) — Wrongful Sale — License—Levy of Taxes.
    In a prosecution for selling malt liquor and beer without a license as a dealer in violation ■of Pen. Code 1911, art. 612, it was not necessary for the state to prove any county levy of taxes under such law.
    .[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dec. Dig. § •224.]
    10. Intoxicating Liquors (§ 239) — Wrongful Sale — License as Dealer.
    In a prosecution for selling malt liquor or beer without a license as a dealer in violation of Pen. Code 1911, art. 612, it was proper for the ■court in stating the case to the jury to charge the substance of article 611, providing for retail liquor dealers’ licenses, since the obtaining ■of a license as a retail liquor dealer expressly includes the tax and license as a malt liquor •dealer.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § •239.] .
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Alfredo Figueroa was convicted of selling malt liquor, and lie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was prosecuted and convicted under article 612, P. C., for selling malt liquor, beer, without ■a license as such dealer.

The complaint and information sufficiently charge the offense. No motion was made to quash them. There are unnecessary allegations therein, but such should not be regarded, and are surplusage. Thompson v. State, 152 S. W. 894; Goodwin v. State, 158 S. W. 274, and eases cited.

There was a motion to arrest the judgment, but the grounds thereof were for defects of form. Under the statutes such motions are granted only for substantial defects. P. C. arts. 849, 850, 476, 480. One ground is that in the information the word “capable” in this portion of a sentence “capable of producing intoxication” was misspelled, “capapble.” This word was qorreetly spelled in said sentence in the complaint, and by express averment the information alleges it is preferred “in connection with the affidavit (complaint).” In no event should the judgment have been arrested on said ground. Bailey v. State, 63 Tex. Cr. R. 584, 141 S. W. 224; Qualls v. State, 158 S. W. 539.

The verdict, “We, the jury, find the defendant guilty as charged, and assess his fine at $300 and* 30 days in jail,” is clearly sufficient. It is general as required by the statute (G. G. P. art. 770). There is but one count in the complaint and information. Even if there had been two or more, the general verdict could, and should, be applied to the good one sustained by the evidence. Wh. Ann. G. G. P. § 902, and cases cited.

That the complaint and information alleged appellant sold “malt liquor or beer” is not defective because “and” was not used instead of “or.” “Malt liquor” and “beer,” under the statute, are in effect synonymous. Johnson v. State, 66 S. W. 552; O’Neal v. State, 51 Tex. Cr. R. 100, 100 S. W. 919; Milling v. State, 150 S. W. 434; C. C. P. art. 473.

Appellant complains, by bill, in effect, that the court would not let him go into the details of a thorough whipping by appellant of one of the state’s witnesses, to show said witness’ malice, ill will, etc., against him. While it is always permissible to show such state of feeling of any witness (Pope v. State, 143 S. W. 611; Earle v. State, 142 S. W. 1181), yet the details and particulars cannot be shown. The court, in allowing the bill, stated he permitted the defendant to prove there had been a difficulty between them, but refused to let the details be shown.

Certain short remarks of the county attorney in argument were objected to. But the bills do not show the state of facts under which they were made. Nor were any charges asked instructing the jury to disregard them. Even in felony, much less in misdemeanor, cases, this would not present reversible error. Clayton v. State, 149 S. W. 119, and cases therein cited.

The court did not err in refusing appellant’s special charge defining “occupation” or “business,” as given therein. Neither of these words are used in the statute under which this prosecution was had. Even if it had been necessary to define either or both, the charge asked was incorrect, and not in accordance with the statute and decisions. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 602, 136 S. W. 260; Creech v. State, 158 S. W. 282, and cases cited.

This court knows judicially that beer is intoxicating. Moreno v. State, 143 S. W. 156. In addition, the pleadings alleged the beer, or malt liquor, appellant is shown to have sold and dealt in, was intoxicating, and the court, by the charge, required the jury to so believe before they could convict. The uncontradieted evidence shows several sales of beer to different persons about the time alleged; that at the time he made some of these sales he had bottled beer in a barrel with ice around them, and at other sales he had the bottled beer in a tub on ice; that he had this beer at his meat market when he made these sales; and that he had paid no tax as a retail malt liquor dealer, and had no license therefor. Mansfield v. State, 17 Tex. App. 468; Wade v. State, 22 Tex. App. 631, 3 S. W. 786; and see also the cases cited last above, and many other decisions to the same effect. Therefore the court did not err in refusing appellant’s special charges on these subjects, nor in the charges given; for, taking the charges given together, they correctly presented all the questions proper to be charged.

It was not necessary for the state to prove any county levy of taxes under this law (article 612, P. 0.).

In stating the case to the jury, the court, in the charge, gave in substance article 611, P. O. This was proper because the payment of the tax and getting a license as a retail liquor dealer expressly included the tax and license as a malt liquor dealer. Besides, in submitting the case for a finding, the court only submitted it under article 612, P. C. Reynolds v. State, 58 Tex. Cr. R. 275, 124 S. W. 931; Matthews v. State, 160 S. W. -, this day decided, and eases there cited.

There is no reversible error shown, and the ease will be affirmed.  