
    KUYKENDALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Indictment and Information (§ 119)— Surplusage.
    The indictment clearly charging an offense under the statute both in getting drunk and being found intoxicated in a public place, unnecessary allegations do not invalidate it but are to be treated as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    2. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    Questions as to introduction of evidence, attempted to be raised by motion for new trial, cannot be reviewed on appeal in the absence of bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Montague County Court; Levi Walker, Judge.
    Theo. Kuykendall was convicted, and appeals. Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Under a complaint and information appellant was tried before the court, without a jury, and fined $5.

The statute under which this conviction was had is: “Any person who shall get drunk or be found in a state of intoxication, in any public place shall be deemed guilty of a misdemeanor and on conviction before a court of competent jurisdiction shall be fined in a sum of not more than $100 for each and every such offense.”

The complaint and information charge that he, on or about January 12, 1913, in Montague county, “did then and there unlawfully get drunk [by the immoderate use of spirituous, vinous, and malt liquors] in a certain public place, to wit, the Methodist Church house at Gladys, in Montague county, Tex., a place where people were then and there assembled for business, pleasure, and recreation, and was found in said public place in a state of intoxication.” While this complaint and information contain some unnecessary matter, yet it clearly charges an offense under said statute on both grounds, which are made offenses thereby, to wit, that he got drunk in a public place and that he was found in a state of intoxication in a public place. The unnecessary matter can and should be treated as surplusage. Goodwin v. State, 158 S. W. 275, in which a large number of cases are collated and cited. The words in brackets above are surplusage; but, if not, they in no way invalidate the complaint and information.

Appellant has no bill of exception in the record. He attempts to raise some question as to the introduction of some testimony by his motion for new trial, which we cannot review in the absence of a bill, of exception.

By other grounds of a motion for new trial he attacks the judgment of the court because • he claims the evidence was insufficient to support the conviction. While the evidence was conflicting to some extent, the testimony as a whole clearly was sufficient to establish both charges in the complaint and information.

The judgment is affirmed.  