Appellant earnestly urges a rehearing. His principal insistence is that the indictment being unquestionably duplicitous, his motion in arrest of judgment for said reason, should have been granted. A practically unbroken line of authorities in this State holds that it is not a fundamental defect to charge more than one separate and distinct offense in the same count in an indictment or information, that it can be waived, and unless raised by motion to quash or in limine, it cannot thereafter be relied upon. There is as much legal objection to duplicity based on charging two separate offenses in one count, as there is in charging a larger number. The number of such offenses so charged adds nothing to the proposition either way. Appellant cites as authority a number of recent decisions of this court in which we have directed reversals and dismissals of indictments for duplicity, reasoning therefrom that such indictments must have been held void, and further concluding that if void an indictment can be attacked at any time. The cases cited will be found in each instance to reflect a motion to quash in limine, which should have been sustained. Duplicity is not a fundamental error in the indictment and does not render it void but voidable. We are cited to no well considered authority and know of none holding to the contrary. The case of Woods v. State, 84 S.W. Rep., 1058, which is cited by appellant, without analysis or discussion, and upon the authority of Pisano v. State,34 Tex. Crim. 63, and Heineman v. State, 22 Texas Crim. App., 44, holds that a motion in arrest of judgment aimed at duplicity in an indictment should be sustained. Neither authority cited therein supports the proposition. In Pisano's case it was held that there was no duplicity, and in Heineman's case a motion to quash was presented in limine. Insofar as the Woods case, supra, is contrary to the present holding it is overruled.
We cannot agree with appellant that error appears in not trying him under the law as it existed prior to November 15, 1921, when the amendment to the Dean Law went into effect. The officers who raided his house in December, 1921, testified to finding large quantities of liquor and a still and mash. The paraphernalia was warm and some of the liquor was warm, and was dripping from the worm of the still into a container. The fact that a witness did testify that appellant and his wife began to make liquor in September, 1921, in no way militates against the conclusiveness or the sufficiency of the evidence in this record to sustain the conviction for the manufacture of liquor in December, 1921, that being the date alleged and the date submitted in the charge of the court. *Page 527
Appellant also raised the question of error in not submitting to the jury the issue of suspended sentence. He filed an application for suspended sentence in which he did not allege that his age was under twenty-five. He and his wife both testified they had been married seven years. There was no testimony indicating that appellant was under twenty-five years of age. The issue was not submitted by the trial court. No special charge was asked and no exception taken to the charge for its failure to submit said issue. No error appears.
Being unable to agree with the contentions raised by appellant in his motion, same will be overruled.
Overruled.