
    KLEIN v. STATE.
    (No. 9802.)
    (Court of Criminal Appeals of Texas.
    April 28, 1926.)
    1. Indictment and information <@=>l25(20):— Several ways by which an offense may be committed, set forth in same statute, may be charged conjunctively in same count, where not repugnant.
    Where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent and are not repugnant to each other, they may be charged conjunctively in the same count.
    2. Indictment and information <§=I25(3I)— Count charging keeping and being interested in keeping premises for purpose of selling, transporting, receiving, and giving away intoxicating liquor, held not duplicitous.
    Count of indictment charging defendant with keeping and being interested in keeping premises for purpose of selling, transporting, receiving, and giving away intoxicating liquor, held not duplicitous; gist of offense being keeping of premises for unlawful purpose.
    3. Criminal law <&wkey;682 — Permitting testimony as to prior keeping of liquor by defendant in state’s case in chief held not reversible error, since it was admissible as rebuttal.
    In a prosecution for violation of the liquor laws, permitting state in its case in chief to introduce evidence of former sheriff relative to a prior keeping of liquor by defendant held not reversible error, since it was admissible as rebuttal of accused’s claim that he’manufactured beer found on his premises for his wife to use as medicine.
    4. Criminal law <§=682.
    State, in making its case in chief, has right to resort to any testimony that is conducive to that purppse.
    5. Indictment and information <&wkey;l76 — Admission of testimony as to intoxicating quality of liquor found on accused’s premises subsequent to presentment of indictment held error.
    Where state had introduced very meager testimony as to intoxicating effect of home brew prior to time of return of indictment, it was error to permit witness to testify as to intoxicating quality of liquor found on accused’s premises subsequent to return thereof.
    Commissioners’ Decision.
    Appeal from District Court, Gillespie County; T. H. McLean, Judge. '
    Albert Klein was convicted of a violation of the liquor laws, and be appeals.
    Reversed and remanded.
    H. H. Sagebifel, of Fredericksburg, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s .Atty., of Groesbeck, for the State.
   BERRY, J.

The appellant was condemned to two years’ confinement in the penitentiary under an indictment which charged that on or about the 5th day of February, 1925, in Gillespie county, Tex., he did then and there unlawfully and knowingly keep and was interested in keeping, certain premises, building, room, and place used for the purpose of manufacturing, storing, selling, transporting, receiving, delivering, and giving away spirituous, vinous, and malt liquor capable of producing intoxication. The indictment then sets out with particularity the premises and names the place where they were situated in the town of Fredericksburg.

The defendant excepted to the indictment because same was duplicitous, in that it sought to charge the defendant with two or more several offenses in one count, in that it charged him with keeping and being interested in keeping premises for the purpose of selling, transporting, receiving, and giving away intoxicating liquor. The appellant’s exceptions to the indictment were properly overruled. The gist of the offense is the keeping of his premises for an unlawful purpose, and it is well settled that, where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent and are not repugnant to each other, they may be charged conjunctively in the same count. French v. State, 99 Tex. Cr. R. 429, 269 S. W. 786; Wimberley v. State, 95 Tex. Cr. R. 102, 252 S. W. 787. Also see section 508, Branch’s Ann. P. C., where many authorities are cited supporting this rule. .

The state proved by the sheriff of Gillespie county and other witnesses that, acting under a search warrant, he' searched the premises of the appellant and found about a dozen bottles of home brew in his residence and found 11 gallons of whisky in his garage; that he also found in the middle of the garage a big wash boiler and a gas burner.. The sheriff testified:

“I think it was a regular burner, for to cook that stuff, the whisky.”

The sheriff and his deputies testified that this search was made on or about the 5th day of'February, 1925.

The appellant complains at the action of the court in permitting the witness Ex-Sheriff Petmecky to testify that on or about the 1st day of April, 1924, while he was sheriff, he searched the premises, of the appellant and found 32 gallons of whisky and 50 bottles of home brew, 100 gallons of mash, about 15 gallons of wine and 2 stills. .Appellant objected to the introduction of this testimony for the reason that it formed no part of the res gestae of the case on trial, and for the further reason that the transactions testified about were -too remote from the transactions involved in this trial, and were therefore wholly irrelevant and immaterial to any issue in the case. It is proper to state that the appellant testified in his own behalf that he made the liquor found in the bottles by the sheriff for his wife; that he did not make it to sell or give away or anything of the kind; that the whisky found did not belong to him, but belonged to a party- named Heck. It is appellant’s contention that under the authority of Copeland v. State, 99 Tex. Cr. R. 659, 271 S. W. 91, this testimony was not admissible. In the Copeland Casp, however, this court, speaking through Judge Lattimore, held that the state might not prove separate similar crimes against the accused on the theory of system, unless same appeared necessary to rebut a clawn of good faith, lack of evil intent, etc. We think this testimony was clearly admissible as rebutting appellant’s claim that he manufactured the beer found on his premises for his wife to use as a medicine. It is true that the state introduced this testimony in making its case in chief; but, in view of appellant’s testimony in the case, we would not hold this'to be reversible error. Gregory v. State, 92 Tex. Cr. R. 574, 244 S. W. 615. Again' it may be said that the rule is well settled in this state that in making its case in chief the state has the right to resort to any testimony that is conducive to that purpose.

The appellant claimed, and it was in evidence, that the whisky found on his premises did not belong to him, but belonged to a neighbor by the name of Heck, who had rented his garage, and claimed that the stuff called home brew was'manufactured by him for the use of his wife for medicine. The indictment was returned on the 21st day of February, 1925, and with the. record in this condition, appellant complains at the court’s action in permitting the witness Danz to testify that on the 24th day of March, 1925, some six weeks after the indictment was returned against him, he bought some of the so-called home brew from the appellant and that it made the witness drunk.

We think this testimony was an important part of the state’s case, in view of the fact that the state had introduced very meager testimony, if any, to the effect that the so-called home brew found prior to the time of the return of the indictment was intoxicating. This being true, it was not competent for the state to make its case by proof of the intoxicating quality of liquor found on appellant’s premises subsequent to the presentment of the indictment. It is true, as stated by Mr. Branch in section 439 of his P. C., that the state is not bound by the date alleged in the' indictment, and -may prove that the offense was committed before, on, or after the date alleged, but he very properly recognizes the further rule that the date proved must be anterior to the presentment of the indictment, or information, and not so remote as to be barred by limitation. Johnson v. State, 1 Tex. App. 118. Temple v. State, 15 Tex. App. 314, 49 Am. Rep. 200; Lucas v. State, 27 Tex. App. 323, 11 S. W. 322; Hogan v. State, 65 Tex. Cr. R. 50, 143 S. W. 184; Hamer v. State, 60 Tex. Cr. R. 341, 131 S. W. 813.

We think the court erred to the prejudice of the appellant in admitting this testimony, and for such errot the judgment is reversed, and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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