
    ARMENDARIZ v. STATE.
    (No. 4442.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law <&wkey;1090(19) — Appeal — Preservation oe Exceptions.
    The court on appeal cannot, in the absence of bill of exceptions or statement of facts, 'consider objections made only in the motion for new trial to the court’s charge and the introduction ctf some testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804:, 3204.]
    2. Intoxicating Liquors <&wkey;208 — Illegal Sale — Information—Sufficiency.
    An information charging that on a certain day, defendant was the agent of another who was a licensed retail liquor dealer in a county other than where local option was then in force, and that accused unlawfully between 9:30 p. m. Saturday and 6 a. m. Monday following, opened the saloon and sold intoxicating liquors, is sufficient under Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, defining the offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 228, 261.]
    3. Indictment and Information <&wkey;125(20)— Joining Charges — When Proper.
    Where several ways by which an offense may be committed are set forth in the same statute and they are embraced in the same general definition and arc punished in the same manner and to the' same extent and not repugnant to each other, they are no distinct offenses, but different phases of the same offense, and may be charged conjunctively in the same count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 351.]
    4. Intoxicating Liquors <&wkey;223(5) — Illegal Sale — Elements oe Offense.
    Under Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, defining the crime of keeping open a saloon on Sunday and stating several ways in which the offense may be committed, proof of any one way sustains conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig, § 273.]
    5. Criminal Law <&wkey;1144(13) — Appeal—Presumption.
    On appeal from conviction of keeping open a saloon on Sunday, where there is no statement of facts nor bill of exceptions, the court must conclusively presume that the state proved a violation of one or more of the phases of the offenses prescribed by Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, under which the prosecution was brought.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, '3031.]
    Appeal from El Paso County Court; Adrian Pool,. Judge.
    Dick Armendariz was convicted of unlawfully keeping open a saloon on Sunday, and lie appeals.
    Affirmed.
    Weeks & Owen, of El Paso, for appellant. E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully keeping open a saloon on Sunday and fined $200.

There is no statement of .facts nor any bill of exceptions in the record. In his motion for new trial only does he complain of some parts of the court’s charge and the introduction of some testimony. These questions only thus attempted to be raised cannot be considered, in the absence of a bill of exceptions or a statement of facts. Hence it is unnecessary to here state them. The only question which is raised is the sufficiency of the complaint and information. The prosecution was under article 615, P. C., as amended by Act March 31, 1913, p. 141, which as to this offense is:

“EVcry person or firm having a license, who may be engaged in or who may hereafter engage in the sale of intoxicating liquors to be drunk on the premises (in any locality of this state other than where local option is in force) * * * shall close and keep closed their houses and places of business and transact no business therein or therefrom from and after nine thirty o’clock p. m. on Saturday until six o’clock a. m. of the following Monday of each week, and any such person or firm or his or their agent or em-ployé who shall open or keep open, or permit to open or permit to be opened or kept open, any such house or place of business, for the purpose of traffic or who shall sell or barter any intoxicating liquor of any kind, or who shall transact or permit to be transacted therein or therefrom any such business between the hours aforesaid shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty dollars nor more than two hundred dollars or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.”

The information is based upon and follows the complaint. After tbe usual and proper preliminary allegations, the information avers that on or about August 13, 1916, and before the filing thereof, appellant “was then and there the agent of C. E. James, who was then and there a retail liquor dealer, having a license as such, and being then and there engaged in the sale of intoxicating liquors to be drunk on the premises, said premises being situated in the city and county of El Paso, Tex., said city and county of El Paso being a locality in this state other than where local option was then and there in force, and did then and there unlawfully between the hours of 9:30 o’clock p. m., Saturday, August 12, 1916, and 6 o’clock a. m., Monday, August 14, 1916, open, and permit to be kept open, the said place of business for the purpose of traffic, and did then and there barter and sell intoxicating liquors, to wit, whisky and beer in quantities of one gallon and less, and did then and there transact and permit to be transacted therein and therefrom such business, against the peace and dignity of the state.”

A comparison of this pleading with the said statute shows that it was strictly in accordance therewith, and unquestionably sufficient to charge a violation thereof of all the several matters made an offense under the statute, and was clearly sufficient.

It is well established that where several ways by which an offense may be committed are set forth in the same statute and they are embraced in the same general definition and are punished in the same manner and to the same extent and not repugnant to each other, they are not distinct offenses, but different phases of the same offense, and may be charged conjunctively in the same count. 1 Branch’s An. P. O. § 50S, p. 262. And in such event it would be unnecessary to prove all of them. Proof of any one would be amply sufficient to sustain a conviction.

As there is no statement of facts nor bill of exceptions herein, wé must conclusively presume that the state proved a violation of some one or more, if not all, of the phases of the offense prescribed by the statute and alleged.

The judgment is therefore affirmed. 
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