
    RIOJAS v. STATE.
    (No. 9520.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.
    Rehearing Denied Dec. 23, 1925.)
    1. Intoxicating liquors &wkey;>223(3) — Variance, in that liquor not shown to be spirituous or vinous, held not -to require peremptory instruction.
    Variance between allegation that accused transported spirituous, vinous, and intoxicating liquor, capable of producing intoxication, and proof showing only that liquor was capable of producing intoxication, did not require peremptory instruction.
    2. Criminal law <&wkey;>365(l) — Fact that officers searching car transporting intoxicating liquors found pistols therein held admissible as res gestee.
    In prosecution for transporting intoxicating liquor, fact that officers searching car carrying liquor found pistols therein was admissible in evidence as part of res geste.
    3. Criminal law <&wkey;369(6) — Refusal to charge, that jury should not consider testimony that pistols were in car carrying intoxicating liquor held not error.
    In prosecution for transporting intoxicating liquor, refusal to charge that jury should' not consider testimony showing . that pistols were in car transporting liquor was not error; it being admissible as persuasive of unlawful' character of enterprise.
    On Motion for Rehearing.
    4. Criminal law <&wkey;(050 — Misspelling word held not to render indictment for transporting intoxicating liquors defective.
    Pact that, in indictment for transporting intoxicating liquors, word “intoxicating” was misspelled “intoxication,” did not render indictment defective when treated and regarded-both by trial court and accused merely as matter of misspelling, and no exception was taken.
    5. Intoxicating liquors <&wkey;223(3) — Proof that liquor transported was intoxicating held to-meet allegation in indictment.
    Proof that liquor transported by accused, was intoxicating met allegation in indictment charging transportation of spirituous, vinous, and intoxicating ,, liquor capable of producing intoxication.
    
      Appeal from District Court, Jim Wells County; Hood Boone, Judge.
    Benito Rio.jas was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    L. Broeter, of Alice, and Bell & Bell, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BATTIMORE, J.

From conviction in the district court of Jim Wells county for transporting intoxicating liquor, with punishment fixed at one year in the penitentiary, this appeal is taken.

Appellant and his brother were in a car and passed a place where some officers were; the attention of the latter being attracted by the apparent contents of the car. A chase was undertaken and extended 1% or 2 miles before the car was caught. Same was found to contain 131 bottles of tequila, shown by the testimony to be intoxicating liquor. The first bill of exceptions was to the refusal of a peremptory instruction based on the proposition that there was a variance between the allegation and the proof, in that it was alleged that appellant transported spirituous; vinous, and intoxicating liquor capable of producing intoxication, and that the proof only showed that the liquor was capable of producing intoxication, and that, it was not shown that same was spirituous or vinous. The complaint is without merit. Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242.

The complaint that the officers searching the car found two pistols and were allowed to testify to this fact is not sound. What was found in the car was part of the res gestae of the transaction, and was admissible; nor do we think it erroneous for the court to refuse to charge the jury that they should not consider any testimony showing that the pistols were in the.car. While the unlawful transportation of liguor is itself a felony, the state would not be denied the right to prove, as persuasive of the unlawful character of the enterprise, that the parties had in the car weapons.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists' that the proof failed to meet the allegation, and he cites Chaves v. State (Tex. Cr. App.) 275 S. W. 1006. The allegation in the indictment in that case differs from that in the instant case. In the case now before us it was alleged that the accused transported spirituous, vinous, and intoxicating liquor capable of producing intoxication. It appears from the record that I in the indictment the word “intoxicating” was written “intoxication,” but this was treated and regarded both by the trial court and appellant as merely a matter" of misspelling. In his charge to the jury, the learned trial judge instructed them that appellant was charged with transporting spirituous, vinous, and “intoxicating” liquor capable of producing intoxication. No exception was addressed to this. In appellant’s motion for an instructed verdict, he asked for same, stating that defendant was charged with the unlawful transportation of spirituous; vinous, and “intoxicating” liquor; this statement appearing twice in said motion. Again in appellant’s motion for new trial he states that the indictment charged him with the unlawful transportation of spirituous, vinous, and “intoxicating” liquor. The rule in this state is .too well settled to need citation of authorities, that an indictment will not be held defective for the mere misspelling of a word.

Holding then that the indictment charged the transportation of “intoxicating liquor capable of producing intoxication,” it is entirely different from the indictment in the Chaves Case, supra, which charged transportation of “spirituous, vinous, and malt liquor, capable of producing intoxication.”

The proof in this case showing that the liquor transported by appellant was intoxicating, this met the allegation in the indictment. The, proof in the Chaves Case, supra, did not meet the allegation in the indictment. The Chaves Case is not authority for appellant’s contention.

Believing the original disposition of this case to be correct, the motion for rehearing will be overruled. 
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