
    DONALDSON v. STATE.
    (No. 7398.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.
    Rehearing Denied April 2, 1924.)
    1. Criminal law <@=»6I4(3) — Defendant’s second application for continuance based on absent testimony held properly denied as defective.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 609, a second application for continuance by defendant, failing to allege that the absent testimony on which the application is based cannot be procured from any other source, is properly denied.
    2. Indictment and information <@=>132(7)— State not required to elect between, counts each charging unlawful sale of intoxicating liquors.
    In a prosecution for the unlawful sale of intoxicating liquors, the state is not required to elect where the indictment contains two counts, each charging an unlawful sale of intoxicating liquor, one alleging that the liquor was intoxicating and the other that it contained more than 1 per cent, of alcohol by volume.
    3. Indictment and information <§=> 125(1) — Duplicity not shown by mere presence of two counts.
    An indictment containing two counts is not for that reason subject to the objection that it is duplicitous.
    4. Indictment and information <@=>125 (I)— “Duplicity” defined.
    “Duplicity” is the charging of more than one offense in a single count of an indictment.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Duplicity.]
    5. Intoxicating liquors <@=>216 — Indictment for unlawful sale need not specify kind.
    It was not necessary that an indictment for the unlawful sale of intoxicating liquor specify the kind of liquor .sold.
    6. Intoxicating liquors (§=233(2) — Evidence.of finding liquor on premises of accused held admissible in prosecution for unlawful sale.
    In a prosecution for the unlawful sale of intoxicating liquor where accused denied the sale and claimed that there was no liquor in his possession nor on his premises, the admission of testimony of the finding of three bottles of intoxicating liquor in his yard held not erroneous.
    7. Criminal law <@=>783(1) — Charge restricting effect of testimony of finding liquor to certain issue held not erroneous.
    In a prosecution for the unlawful sale of intoxicating liquor where three bottles of intoxicating liquor were found in a mudhole on defendant’s premises, an instruction, restricting the jury’s consideration of the testimony of the finding of such three bottles of liquor to the issue whether it shed light on the purported sale charged, held not erroneous.
    8. Criminal law <@=>1091(11) — Rule stated as to right to present bilis of exception in question and answer form.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 846, the presentation of bills of exception in question and answer form, except when certified by the trial court as necessary in order to place before the appellate court the settling of the objection, is forbidden.
    9. Intoxicating liquors <@=>236(11) — Evidence held sufficient to sustain conviction, for unlawful sale.
    In a prosecution for the unlawful sale of intoxicating liquor, evidence held sufficient to sustain conviction.
    <@=>For other cases see same topic and KEr-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Hall county; J. A. Nabers, Judge.
    E. B. Donaldson was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Affirmed.
    T. T. Clark, of Santa Ana, Cal., for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Hall county of selling intoxicating liquor, and his punishment fixed, at two years in the penitentiary.

Appellant made a second application for continuance. Same failed to allege that the absent testimony could not he procured from any other source. The -action of the court in overruling the application was in accordance with article 609, Vernon’s C. C. P., and the authorities cited thereunder.

The indictment contained two counts, each charging a sale of intoxicating liquor, one alleging that the liquor was intoxicating, the other that same contained more than 1 per cent, of alcohol by volume. The state was not required to elect. Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 27; Zilliox v. State, 93 Tex. Cr. R. 301, 247 S. W. 523.

An indictment containing two counts is not for this reason subject to the objection that it is duplicitous. “Duplicity” is the charging of more than one offense in a single count. It is not necessary that the indictment specify the kind of liquor sold. Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242.

Appellant denied making the'alleged sale and claimed that there was no liquor in his yard or Ms possession, or on Ms premises. There was no error in admitting testimony of the finding of three bottles of intoxicating liquor in a mud hole in the yard. The charge of the court restricting the jury’s consideration of the testimony of the finding of said three bottles, to the issue of whether' same shed light on the purported sale of the liquor charged, is not open to the exception that was taken thereto.

Bills of exception Nos. 9, 10, 11, 12, 13, and 14 are objected to by the Assistant Attorney General' because same are in question and answer form. An inspection of the record reveals that this objection is well taken and said bills will not be considered. Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744. Article 846 of our Code of Criminal Procedure forbids the presentation of bills of exception in question and answer form except when certified by the trial court as necessary in order to place before this court the settling of the objection., No such showing appears in any of the bills of exceptions referred to.

The proof of guilt being sufficient, and no error appearing in the record, an affirmance will be ordered.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant reasserts that error was committed by the trial court in admitting in evidence the fact that subsequent to appellant’s arrest certain liquor was found on Ms premises. We find this matter is attempted to be presented for review by bill of exception in question and answer form,' and we regret that we are not permitted to consider it in •such condition. In addition to the authorities cited in the original opinion upon this point, we refer to the case of Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857, for a collation of many, authorities relative to bills of exception in such form.

Other questions raised in the motion turn largely upon the charge of the court relative to this liquor. Not being in a position to consider the admissibility of evidence relative to it, we are likewise unable to say the charge of the court limiting the purpose for which it was ¿dmitted was-erroneous.

The motion for rehearing is overruled.  