
    LAMINACK v. STATE.
    (No. 7275.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1923.)
    intoxicating liquors <⅜*222 — Where indictment fails to negative exceptions in law controlling when offense was committed, prosecution will be dismissed.
    Where an indictment for manufacturing intoxicating liquor before Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¾ et seq.), went into effect, fails to negative the exceptions enumerated in Acts 36th Leg. (1919) 2d Called Sess. c. 78 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), then controlling, the prosecution will be ordered dismissed.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Elmore Lamihack was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed, and prosecution ordered dismissed.
    
      John T. Spann, of Dallas, and Jones & Jones, of Mineóla, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for manufacturing liquor.-' Punishment, one year in the penitentiary.

The indictment alleges, and the proof shows, that the alleged offense was committed on November 10, 1921. This was before the amended act of the 37th Legislature, c. 61, p. 233, 1st C. S. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¾ et seq.), went into effect, and this prosecution therefore was controlled by the law passed at 2d O. S. 36th Legislature (article 588¼. et seq.). In order to charge an offense under that law, it was necessary to negative the exceptions. The indictment in the present case fails to do so. McNeil v. State (Tex. Cr. App.) 239 S. W. 954; Stringer v. State (Tex. Cr. App.) 241 S. W. 159; Bell v. State (Tex. Cr. App.) 243 S. W. 1095.

No offense being charged, the judgment must be reversed, and dismissal of the prosecution under the present indictment ordered. 
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