
    WILLIAMS v. STATE.
    (No. 8912.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    1. Indictment and information <&wkey;>l25(!9) — Indictment charging operation of motor vehicle while intoxicated and under influence of liquor held not duplicitous.
    Indictment, charging that accused while “intoxicated and under the influence of intoxicating liquor” unlawfully operated a motor vehicle-upon a public highway, held not duplicitous.
    2. Criminal law <®=»8I4(I) — Instruction whether accused was under the influence of liquor held adequate.
    In prosecution, based on Acts 2d Called Sess. 38th Leg. (1923) c. 23, where issue raised by evidence was whether accused was drunk or sober, instruction submitting question whether accused was under the influence of intoxicating liquor held adequate.
    3. Statutes <&wkey;64(6) — Phrase in statute pertaining to driving of motor vehicles while drunk held not to invalidate rest of statute.
    Thq phrase appearing in Acts 2d Called Sess. 38th Leg. (1923) c. 23, § 1 “or in any degree under the influence of intoxicating liquor,” held not to invalidate statute in so far as it denounces driving of an automobile by a person who is intoxicated or under tbe influence of intoxicating liquor.
    4. Criminal law <&wkey;l 159(1) — Jury’s solution of issue of fact binds Court of Criminal Appeals.
    Jury’s finding on issue of facts binds Court of Criminal Appeals.
    iStenlPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Erank Williams was convicted of an offense, and be appeals.
    Affirmed.
    Shelby S.' Cox. Cr. Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover 0. Morris; Asst. State’s Atty., both of Austin, for tbe State. -
   MORROW, P. J.

Tbe indictment charged that tbe appellant “was intoxicated and under tbe influence of intoxicating liquor, and while so intoxicated and under tbe influence of intoxicating liquor, did unlawfully drive and operate a motor vehicle upon a public road and highway.”

This indictment was not, in our opinion, obnoxious to the rule against duplicity. It charged but one offense. The theory that, in charging that the appellant was intoxicated and under the influence of intoxicating liquor, two offenses were charged, we think is not tenable. To our minds, it may be very plausibly contended that being intoxicated and being under the influence of intoxicating liquor are but different ways of showing the same thing. See Red Jones v. State (No. 8884) 273 S. W. -, not yet reported. See, also, Scoggins v. State (Tex. Cr. App.) 266 S. W. 513. If the statements mentioned, as contained in the indictment, are not in effect identical, the indictment manifestly is not duplicitous, but comes within the rule authorizing the statement in one count of the different means of committing the same offense. See Gault v. State (Tex. Cr. App.) 269 S. W. 92, and eases there cited. If the indictment had simply alleged that the appellant was under the influence of intoxicating liquor, it certainly might have been proved under that averment that he was drunk. Under an allegation that he was'intoxicated, the same proof would have been admissible. As stated in Scoggins v. State, supra, there may be degrees of intoxication —that is, degrees of being under the influence of intoxicating liquor — and if the evidence warranted it, an instruction to the jury might properly be demanded which took note of this fact. In the present ease, however, the issue arising from the evidence seems not to have been whether the appellant was partially under the influence of intoxicants, for from the state’s standpoint the appellant was drunk in all that that term implies. From his testimony he was sober and in no sense under the influence of intoxicating liquor. This being an issue of fact which the jury was called upon to solve, the instruction given the jury, namely, whether he was under the influence of intoxicating liquor, adequately submitted the issue arising from the evidence.

Some of the special charges offered referred to the language “or in any degree under the influence of intoxicating liquor.” These words, though found in the statute, were not used in the indictment. We are therefore not called upon to discuss them. Their use in the statute, however, does not render it invalid in so far as it denounces as an offense the driving of an automobile upon the public highway by a person who is intoxicated or under the influence of intoxicating liquor. See Nelson v. State, 97 Tex. Cr. R. 210, 261 S. W. 1046; Scoggins v. State, supra; also, Acts of 38th Leg., 2d Called Sess. chap. 23.

The evidence adduced by the state, though controverted, is sufficient to support the verdict, and the solution of the issue by the jury is binding upon this court.

The judgment is affirmed.  