
    PENNY v. STATE.
    (No. 7592.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.)
    Intoxicating liquors <§=222 — Indictment charging unlawful manufacture) of liquor required to negative exceptions.
    Under the Constitution and Acts 36th Leg. (1919) 2d Called Sess. c. 78 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.), an indictment charging the unlawful manufacture of intoxicating liquor on specified date prior to amendment of such statute was required to allege that the liquor was not being manufactured for medicinal, mechanical, scientific, or sacramental purposes.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Will Penny was convicted of the unlawful manufdeture of intoxicating liquor, and he appeals.
    Judgment reversed, and prosecution ordered dismissed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor. Punishment fixed at confinement in the penitentiary for a period of four years.

The indictment charges that the offense took place on October 11, 1921. The state’s evidence tends to support that averment. At that time, however, it was necessary, under chapter 78, Acts 36th Leg., 2d Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), that the indictment negative the exceptions contained in the statute and in the Constitution. See Robert v. State, 90 Tex. Cr. R. 134, 234 S. W. 89. The statute was subsequently amended, rendering such averment unnecessary. The Assistant Attorney General concedes that the indictment in the instant case is defective in failing to make the necessary allegations.

The judgment is reversed, and the prosecution ordered dismissed. 
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