
    VANCE v. STATE.
    (No. 4165.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Intoxicating Liquors <&wkey;212 — Indictment — Allegation of Separate Sales.
    An indictment for pursuing the occupation of selling intoxicating liquors in prohibition territory, which, after alleging that defendant unlawfully engaged in and pursued the business, alleged that he “did then and there sell to J. H., J. H., R. B., and J. B. intoxicating liquors,” did not allege a sale jointly to the persons named, but that the sales were made to each of them.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 252; Dec. Dig. &wkey;>212.]
    2. Intoxicating Liquoes <&wkey;223(6) — Prosecution — Evidence.
    In a prosecution for pursuing the occupation of selling intoxicants in prohibition territory, persons not named in the indictment were properly allowed to testify that they purchased whisky from defendant.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274: Dec. Dig. 4&wkey;223 (6).]
    3. Intoxicating Liquoes <&wkey;223(6) — Pursuing Occupation of Selling in Prohibition Territory — Proof of Sales to Persons Named in Indictment.
    In addition to proving that defendant pursued the occupation, the state had to prove that he made at least two sales to persons named in the indictment.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274; Dec. Dig. <&wkey;> 223(6).]
    
      4. Intoxicating Liquors <&wkey;39 — Prosecution — Evidence.
    In prosecution for pursuing occupation of selling intoxicants in dry territory, tlie state was properly permitted to introduce into evidence orders of the commissioners’ court ordering the election and declaring the result, and the certificate of the county judge showing that publication had been made, though it was not necessary to introduce all of such orders.
    • [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. <&^>39.]
    5. Intoxicating Liquors <&wkey;39 — Prosecution — Evidence. ■
    ■ In such prosecution only such orders of ’’the commissioners’ court as evidence that prohibition has been legally adopted need be introduced in evidence.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. <&wkey;39.]
    6. Intoxicating Liquors <&wkey;223(2) — Prosecution — Variance oe Proof from Indict-
    MENT.
    In such prosecution introduction in evidence of order of commissioners’ court ordering election and declaring result, and certificate of county judge showing publication had been made, did not present any variance as to the necessary allegations in the indictment.
    [Ed. Noto. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 268-270; Dec. Dig. <&wkey;> 223(2).]
    Davidson, J., dissenting.
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Leon Vance was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Judgment affirmed.
    Ward & Evetts, of Temple, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory and his punishment assessed at two years’ confinement in the state penitentiary.

The same question is presented in a motion to quash the indictment as was presented in the case of Cleveland v. State, 190 S. W. 177, recently decided. Eor the reasons stated in that opinion, the court did not err in overruling the motion.

The indictment in this case, after alleging that appellant unlawfully engaged in and pursued the occupation of selling intoxi- , eating liquors, alleges that he “did then and there sell to Joe Hall, Jeff Howard, Roe Bilton, and Jim Brown intoxicating liquors.” Appellant, in a motion to quash the indictment and by objecting to Jeff Howard, Roe Bilton, and Joe Hall being permitted to testify that they and each of them purchased from appellant intoxicating liquors on various occasions, contends that the indictment alleges a sale jointly to the persons named, and not that sales were made to each of them. We do not think the language used is subject to the construction sought to be placed thereon by appellant, but that it alleges a sale made to each of the persons named.

Appellant also objected to persons not named in the indictment being permitted to testify that they purchased whisky from appellant. As appellant was prosecuted for pursuing the occupation of selling intoxicating liquors, any testimony which went legitimately to prove that issue was properly admitted. Of course, in addition to proving that he pursued the occupation, the state had to prove that he made at least two sales to persons named in the indictment, and the court so instructed the jury.

There was no error in permitting the state to introduce in evidence the orders of the commissioners’ court ordering the election and declaring the result, and the certificate of the county judge showing that publication had' been made. It was not necessary to introduce all of these orders, but' there was no impropriety in doing so. Only such orders as evidenced that prohibition had been legally adopted were required to be introduced, but that the state went further and showed that each step was legally and properly taken in the premises would present no error. Nor did they present any variance as to the necessary allegations in the indictment.

The charge-instructed the jury that they must find that appellant unlawfully engaged in and pursued the occupation of selling intoxicating liquors, and that he made at least “two different and separate sales of intoxicating liquors” to persons named in the indictment before they would be authorized to convict. It is not subject to the criticism contained in appellant’s bill of exceptions.

The judgment is affirmed.

DAVIDSON, J.,

dissents. See Clark Cleveland v. State, 190 S. W. 177, decided at this term of court. 
      ®=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     