
    McNEIL v. STATE.
    (No. 6877.)
    (Court of Criminal Appeals of Texas.
    May 31, 1922.)
    1. Intoxicating liquors <§=3222 — Indictment alleging conjunctively that case was not within statutory exceptions quashed.
    Under Acts 36th Leg. 2d Called Sess. (1919) c. 78 (Vernon's Ann. Pen. Code Supp. 1922, art. 58SW et seq.), prohibiting the manufacture of liquor except for designated purposes, an indictment alleging conjunctively that the case was not within these exceptions should be quashed, for, if the case was within any one of these exceptions, defendant’s act would he lawful.
    2. Intoxicating liquors <§=3222 — -Prior to amendment to Dean Liquor Law, necessary for indictment to show that case was not within any of statutory exceptions.
    In an indictment for manufacturing liquor under Acts 36th Leg. 2d Called Sess. (1919) c. 78, before the amendment of Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.), it was necessary to allege that liquor was for neither raedie&al, mechanical, sacramental, or scientific purposes.
    3. Intoxicating liquors <§=>222 — Under amendment to Dean Liquor Law, unnecessary for indictment to contain negative averments taking case out of statutory exceptions.
    Under Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Civ. St. Supp. 1922, art. 588¼ et seq.), amending the Dean Liquor Law, it is unnecessary for an, indictment for manufacturing liquor to contain negative averments taking the ease out of the statutory exceptions, but the essential elements of the offense remain the same.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Abe McNeil was convicted for unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Stone, Miller & Guleke, of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor.

There are several counts in the indictment. By election of the state, the first count alone was submitted to the jury. It contained the following language:

“ * * * in the county of Deaf Smith and state of Texas, did then and there unlawfully, and not for medicinal purposes, and not for mechanical purposes, and not for scientific purposes, and not for sacramental purposes, manufacture spirituous liquors capable of producing intoxication.”

A motion to quash the indictment was presented and overruled. In the motion the sufficiency of the indictment was challenged, upon the ground that, in negativing the statutory provisions, the language used was conjunctive and not disjunctive.

The indictment was presented before the amendment of article 78 of the Acts of the Thirty-Sixth Legislature, Second Galled Session, by the passage of chapter 61 of the Acts of the Thirty-Seventh Legislature, First Called Session (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¾ et seq.). Under chapter 78, before it was amended, it was necessary that the indictment negative the exceptions. This was held in Robert v. State (Tex. Or. App.) 234 S. W. S9. The language selected in which to couch the indictment under consideration was not in compliance with the requirements of the indictment stated. The indictment should have been so framed as to aver that appellant manufactured intoxicating liquors under circumstances that did not bring him within any one of the exceptions which made his act lawful. Under the law, if the manufacture of intoxicating liquors was for any one of the permitted purposes, it was not unlawful. In other words, under an indictment properly drawn, the accused might defend himself by showing that, while he manufactured the liquor, he did so for one of the lawful purposes. Robert v. State, supra. To meet the averments of the indictment in the instant case, it would have been necessary to show that the liquor was manufactured for each and all of the permitted purposes. At least it is subject to that interpretation. Citing many cases, the note in State v. Paige, 6 Ann. Cas. 730, states the rule thus:

“When there are several exceptions or provisos to the statute which fall within the rules requiring their negation, it must be alleged that the accused comes within none of the exceptions.”

The cases supporting this rule are: Thompson v. State, 37 Ark. 408; Commonwealth v. Hildreth (Ky.) 33 S. W. 838; State v. Thomas, 90 Me. 226, 38 Atl. 144; Commonwealth v. Hart, 11 Cush. (Mass.) 130; State v. Falk, 38 Mo. App. 554; State v. Meek, 70 Mo. 357, 35 Am. Rep. 427; State v. Abbott, 31 N. H. 434. In our judgment the court was in error in failing to sustain the motion to quash the count in the indictment in question.

Under chapter 78 of the Acts of the Thirty-Sixth Legislature, supra, it was unlawful to manufacture intoxicating liquors except for medicinal, mechanical, sacramental, or scientific purposes. Under that statute it was necessary that the indictment contain negative averments showing that the manufacture was for any one of these purposes. Chapter 61, Acts of the Thirty-Seventh Legislature, First Galled Session, changed the law with reference to the unlawful manufacture of intoxicating liquors only in tiie particular that under the new law it is not necessary that it contain the negative averments. The point made by appellant that, under the new law, it is lawful to manufacture liquors other than for the purpose of sale, we think is not sound. In sections 1 and 2 of chapter 61, ?upra, it is declared that the manufacture of such liquor is unlawful, and in section 2a it is said that it shall not be unlawful for any person to manufacture such liquors subject to the provisions of this act. Other subdivisions of the act show clearly that it was the legislative intent that the offense of manufacturing liquors, as contained in the new law, consist of the same elements as composed that offense in the old law, save that in the pleading under the new law the negative aver-ments were not necessary. Being in a separate section, they were not a part of the definition of the offense, but are provable as defensive matter.

Because of the error of the court in failing to sustain appellant’s motion to quash the count in the indictment under which the prosecution rests, the judgment is reversed, and the cause remanded. 
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