The statement of facts is manifestly but a transcription of the stenographer's notes in question and answer form. It cannot be considered for the reason that it is not in compliance with the statute, Art. 846, C. C. P., as pointed out in the original opinion.
The indictment reads:
"* * * did then and there unlawfully possess a still for the purpose of unlawfully manufacturing spirituous, vinous and malt liquors capable of producing intoxication."
Appellant insists that the indictment is duplicitous. It is founded upon Chap. 22, Acts of 38th Leg., 2d Called Session, in which it is made unlawful to possess equipment for the manufacture of intoxicating liquors, Sec. 2e of which reads as follows:
"Whenever possession or receipt, or possession or receipt for the purpose of sale, is made unlawful by this Act, proof of possession of mash, or of a still or any device for manufacturing intoxicating liquors, or proof of the possession of more than one quart of intoxicating liquors, shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession."
Appellant argues:
"* * * that by the use of the word 'purpose' in said indictment there has been combined against appellant both the offense of possessing and the offense of manufacturing, and the word 'purpose' predicates in the indictment that the appellant has been guilty of manufacturing. That Sec. 2-E of the said Act as above referred to, makes proof of possession of a still or any device for manufacturing intoxicating liquors prima facie evidence of guilt, and Secs. 1 and 2 of the said Acts as above referred to make both possession of a still and the manufacture of intoxicating liquors a separate offense."
If the position taken by the appellant is sound, which is not conceded, the alleged duplicity of the indictment would not be available after verdict in the absence of a motion to quash previously ruled upon. See Nalley v. State, 93 Tex. Crim. 622. *Page 487
He further contends that the indictment is bad because in connection with the averment that we have quoted above, there is no negation of the exceptions under which the manufacture of intoxicating liquors might be lawfully conducted. Since the enactment of Sec. 2b, Chap. 61, Acts of the 37th Leg., 2d Called Session, it has not been necessary that the State either allege or prove that the liquor was not legally manufactured by virtue of some of the exceptions named in the statute and Constitution. In the judgment, appellant is found guilty of "unlawfully possessing a still for the purpose of unlawfully manufacturing spirituous, vinous, and malt liquors." It is insisted that by the use of the word "unlawfully" the judgment is vitiated, citing Carr v. State, 230 S.W., Rep. 405. If the judgment was deemed irregular, this court could and would so amend it as to make it confirm with the verdict. See Art. 938, C. C. P., Vernon's Tex.Crim. Stat., Vol. 2, p. 900, note 9; Wright v. State, 84 Tex.Crim. Rep.; Miller v. State,82 Tex. Crim. 495. However, the unnecessary use of the word "unlawfully" we think, is not of such irregularity as demands or requires attention.
The other questions to which the motion for rehearing refers were sufficiently treated and properly disposed of in the original hearing.
The motion for rehearing is overruled.
Overruled.