
    FLOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.)
    1. Intoxicating Liquoes (§ 216)— Indictment.
    Under a statute which prohibits any one from selling intoxicating liquors in local option territory, an indictment, charging accused with selling “spirituous, vinous and malt liquors,” is not sufficient, in that it does not allege that the liquors were intoxicating.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 230-233; Dec. Dig. § 216.]
    2. Intoxicating Liquoes (§ 239) — Instructions — Definition of Pursuing Business.
    An instruction that, in order to constitute the engaging in or pursuing the occupation of selling intoxicating liquors in local option territory, it was necessary to show that defendant made at least two sales of intoxicating liquor within three years preceding the indictment was erroneous for failure to define what constitutes engaging in or pursuing the business of selling intoxicating liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    3. Intoxicating Liquoes (§ 148) — Defenses — Business of Selling Liquob — What Constitutes.
    To constitute an offense under the statute of engaging in the business of or following the occupation of selling intoxicating liquors in local option territory, the accused must have been engaged in the business of selling intoxicating liquors, and also must have made at least two sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 148.]
    4. Intoxicating Liquoes (§ 236) — Sufficiency of Evidence — Sale.
    Evidence, in a prosecution for engaging in the business of selling intoxicating liquors, held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Appeal from District Court, Madison County ; S. W. Dean, Judge.
    Jim Floyd was convicted of engaging in and pursuing the occupation of selling spirituous, vinous, and malt liquors, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was charged with and convicted of engaging 'in and pursuing the occupation of selling spirituous, vinous, and malt liquors.

The indictment is attacked because it does not allege that he engaged in the business of selling intoxicating liquors. The statute" provides that, in local option territory, if any one shall engage in the business or follow the occupation of selling intoxicating liquors in such territory, except as permitted by law, he shall be punished. We do not believe this indictment is sufficient. Spirituous, vinous, and malt liquors may or may not be intoxicating. The statute requires that, in order to constitute a party guilty, he must engage in selling intoxicating liquors, In framing indictments, the language of the statute should be followed; and, if departed from, words of equal or greater import must be used than those employed in the statute. We call attention to this matter, to the end that pleadings of this sort should not be indulged. The pleadings should set out the offense as denounced by the statute. This is noticed in passing. The ease must be reversed upon other questions ; and we call attention to this loose manner of pleading, so that it may be avoided and the statute followed.

After quoting the statute, the court further instructed the jury: “In order to constitute the engaging in or pursuing of the occupation of selling intoxicating liquors, within the meaning of this act, it is necessary for the state to prove, in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding, the filing of the indictment, and after July 15, 1909, the date on which the act took effect.”

Applying the law to the case, the court charged the jury: “Now, bearing in mind the, foregoing instructions, if ypu believe from the evidence, beyond a reasonable doubt, that the defendant, Jim Floyd, on or about October 19, 1909, did sell to Vade Hines intoxicating liquors, and on or about October 15, 1909, did sell to Jeff Lambert intoxicating liquors, that each and both of said sales were made in Madison county, Texas, and between July 15, 1909, and the date of the filing of the indictment herein, and if you believe from the evidence, beyond a reasonable doubt, that the qualified voters of Madison county had held an election within and for said county at some date prior thereto, after an order made and entered by the commissioners’ court for such an election,” etc. The court nowhere gives the jury any definition of what it takes to constitute engaging in or pursuing the business of selling intoxicating liquors, but in effect, if not in fact, instructed the jury if the two sales were made that this would be sufficient to constitute engaging in the business. While the charge does not expressly so state, yet it does instruct the jury, if these two sales were made after the local option election had been held, then appellant would be guilty under this indictment. This is clearly erroneous. We have decided, whenever the question has come before us, that two things must concur: First, that the party must be engaged in the business of selling intoxicating liquors; and, second, in addition thereto, there must be at least two sales made. We deem it unnecessary to go into a discussion of the questions involved. We have had the matter before us several times; the latest case being Thomas v. State, 147 S. W. 262, decided May 1, 1912.

We are further of opinion the evidence is not sufficient. One of the witnesses sufficiently indicates a sale made by appellant; but the second witness, in our judgment, does not. He says three times he applied to the appellant for whisky on account of sickness. Appellant three times refused to let him have any, or, in other words, finally told him he had ordered some, and if it came he would let him have a bottle. It came before witness left town, and appellant let him have a bottle, but refused to take money for it, but told witness he would give it to him. There was no further attempt to show appellant engaged in the business. Under this state of facts, we do not believe this conviction should have been obtained. Thomas v. State, supra.

The judgment is reversed, and the cause is remanded.  