
    Pedro Flores v. The State.
    No. 758.
    Decided November 2, 1910.
    Business of Selling Intoxicating Liquors — Indictment.
    Upon trial of the offense of engaging in the business of selling intoxicating liquors in violation of law, where the indictment did not allege the fact of any sale or sales by the defendant, and did not give the name of any person or persons to whom the sales were made, the same was insufficient. Following Fitch v. State, 58 Texas Grim. Rep., 366, and other cases.
    Appeal from the District Court of Hvalde. Tried below before the Hon. B. H. Burney.
    Appeal from a conviction of illegally pursuing the occupation of selling intoxicating liquors; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      G. B. Fenley, John W. Hill and Claude Lawrence, for appellant.
    Hpon question of insufficiency of indictment: Keith v. State, 58 Texas Crim. Rep., 418, 126 S. W. Rep., 569; Cohen v. State, 53 Texas Crim. Rep., 422, 110 S. W. Rep., 66, and cases cited in opinion.
    
      John A. Mobley, Assistant Attorney-General, for the State.
   RAMSEY, Judge.

Appellant was charged by indictment filed in the District Court of Uvalde County on the 8th day of April of this year with engaging in the business of selling intoxicating liquors in violation of law.

The indictment charges, after averring that prohibition had been legally adopted in said county, that appellant did “engage in and pursue the occupation of selling intoxicating liquor in violation of said law.” It does not aver the fact of any sale or sales by appellant, or give the name of any person or any number of persons to whom in fact such sales were made. We first held on motion for rehearing in the case of Fitch v. State, 58 Texas Crim. Rep., 366, 127 S. W. Rep., 1047, that the indictment must set out and allege at least two sales within three years preceding the filing of the indictment. This was followed in the later case of Mizell v. State, 59 Texas Crim. Rep., 526, 128 S. W. Rep., 125. As an examination of the opinion in the Pitch case will disclose, I was not in agreement with my brethren in respect to this requirement of the indictment, but this is now a settled question in this court, at least as now composed, and following this decision it must result in holding that the indictment was insufficient and charges no offense against the laws of this State, and that the judgment of conviction should be reversed and the prosecution ordered dismissed, which is now done.

Reversed and dismissed.  