
    MOONEYHAM v. STATE.
    (No. 3870.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    1. Indictment and Information &wkey;H25 — Distinct Offenses—Statute.
    An information under Pen. Code 1911, art. 634, declaring that one who unlawfully ■sells any intoxicating liquors, or does a number of other acts therein enumerated, shall be and be punishable as a vagrant, alleging that defendant unlawfully sold intoxicating liquor and committed a number of acts declared by the statute to constitute vagrancy, was not defective ; as, where several offenses are embraced in the same definition and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 334—400; Dec. Dig. &wkey;125.]
    2. Indictment and Information &wkey;>119 — Surplusage—Allegation.
    Unnecessary words in an indictment, and redundant allegations, and allegations in no way necessary to a description of an offense, and which can. be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as surplusage, and may be entirely disregarded.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. <&wkey;>119.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Lee Mooney ham was convicted of vagrancy, and he appeals.
    Affirmed.
    Bernard Martin, of Wichita Falls, for appellant. T. B. Greenwood, Co. Atty., and John Davenport, Asst. Co. Atty., both of Wichita Falls, and G. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The information, based upon and following a proper complaint, after the necessary preliminary allegations, among other things, averred: That appellant on or about August 22, 1915, in Wichita county, Tex., was then and there a vagrant, to wit, a person who unlawfully sold vinous, alcoholic, malt, intoxicating, and spirituous liquors.

The statute (article 634, P. C.)is:

“The following persons are, and shall he punished as, vagrants, viz.: * * * (c) Persons who unlawfully sell any vinous, alcoholic, malt, intoxicating or spirituous liquors."

Said article of the Code enumerates a large number of other acts which makes a person a vagrant, and the information in the same count also averred appellant committed quite a number of them. But we have selected above the only one submitted by the court, and which was averred as shown. It is unnecessary to state any of the others averred or covered by the statute.

None of appellant's contentions claiming the information was fatally defective can be sustained under the well-established law of this state applicable herein. It is unnecessary to discuss his several contentions. They are all embraced and held against him in the authorities cited in Goodwin v. State, 70 Ten. Cr. R. 600, 158 S. W. 274, where the rules applicable herein are stated. We think it sufficient to quote from that decision, which we do:

"Judge White, in section 405, p. 297, in his Annotated Criminal Procedure, collates some of the authorities, and therein lays down therefrom the correct rule, as follows: `Where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged con~ junctively in the same count.' See Phillips v. State, 29 Tex. 226; Lancaster v. State, 43 Tex. 519; Berliner v. State, 6 Tex. App. 182; Copping v. State, 7 Tex. App. 61; Day v. State, 14 Tex. App. 26; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374. 17 5. W. 934; Willis v. State 34 Tex. Cr. R. 148, 29 S. W. 787; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; State v. Smith, 24 Ten. 285; State v. Edmondson 43 Tex. 162. See, also, section 383, p. 286, White's C. C. P.
"Mr. Bishop, in volume 1,, § 434, of his New Criminal Procedure, says: `Some single offenses are of a nature to be committed by mnny means, or in one or another of severni vnrying ways. Thereupon a count is not double which charges as many means ns the pleader chooses, if not re-pugnnnt; and at the trial it will be established by proof of its commission by any one of them.' Again, in' section 436, he says: `A statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transnctioa does all violates the statute but once, and incurs only one pennlty. Yet lie violates it equally by doing one of the things. Therefore the indictment on such a statute may allege in n single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute has "or," and it will not be double, and it will be established at the trial by proof of any one of them.' * * *
"Again, it is elementary in this state that on-necessary words in an indictment may and should be rejected as surplusage, and that redundant allegations, and allegations which are in no manner necessary to a description' of an offense, and which are not essential to constitute the offense, and which can ha entirely omitted without a~ecting the charge against the de-tendant, and without detriment to the indictment, are treated us mere surplusage, and may be entirely disregardc~ as part of the indictment. Mayo v. State, 7 Tex. App. 342; Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 384, 17 S. W. 411; McDaniel v. State 32 Tex. Cr. R. 16, 21 S. W. 684, 23 S. W. 989; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R.: 540, 34 S. w. 751; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380; Mathews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.
- "Mr. Branch, in his Texas Criminal Law (sec. 905), lays down the same rule in two separate paragraphs, as follows: ~If not descriptive of that which is legally essential to the validity of the complaint, information, or indictment, unnecessary words or allegations may be rejected as surplusage.' And: `If, eliminating the sur-plusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code, and therefore sufficiently charges the offense'citing many of the decisions last above cited and others."

The decision in Ed~cvards V. State, 160 S. W. 80, cited and relied upon by appellant, is not in point, as a reading of the opinion and comparison with the statute as to each allegation will show. Take the first item therein as an example. The allegation held defective was that the accused was "a v~grant person, in that on said date he was able to work and did not work, and has no property to support him." That allegation must have been made under subdivision "a" or "b" of article 634, P. 0., but omitted nec~ essary requisites under both or either.

Subdivision "a" is:

"Persons known as tramps, wand~ing or strolling about in idleness, who are able to work and have no property to support them."

Subdivision "b" is:

"Persons leading an idle, immoral or profligate life, who have no property to support them, and who are able to work and do not work."

If under "a," it omitted to allege that he was a person known as a tramp, wandering or strolling about in idleness. If under "b," it omitted to allege that he was a person leading an idle, immoral, or profligate life.

The evidence was amply sufficient to sus~ tam the conviction.

The judgment will be affirmed. 
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