Appellant was charged by complaint and information with the sale of whiskey in a dry area. His punishment was assessed at confinement in the county jail for a period of nine months and a fine of Five Hundred Dollars.
Appellant's first complaint is that there is a variance between the complaint and information, in this, that in the complaint it is charged that "on or about the 21st day of February, A.D. 1948, and before the making and filing of this complaint, in the County of Floyd, State of Texas, Clarance Christ Loving, did then and there unlawfully sell, * * *," whereas, the information charges that "on or about the 21st day of February, A.D. 1948, one Clarance Christ Loving, heretofore, on the 21st day of February, A.D. 1948, in said County and State, did then and there unlawfully sell an alcoholic beverage containing alcohol in excess of four per cent by weight, to-wit: whiskey, in a dry area, * * *." He claims that the information fails to charge that the offense was committed prior to the filing of the *Page 429 information. We cannot agree with this contention because the same is not tenable. The word "heretofore" in the information is tantamount to an averment that the offense was committed anterior to the making and filing of the information. See Wilson v. State, 15 Tex. App. 150[15 Tex. Crim. 150]; Taylor v. State,76 Tex. Crim. 642; and Collins v. State, 77 Tex.Crim. R.. We therefore overrule this contention.
By Bill of Exception No. 1 he complains of the action of the court in overruling his motion for a peremptory instruction to the jury to acquit him. We see no merit in this bill since the evidence is sufficient to support his conviction.
By Bill of Exception No. 2 he complains of the following remarks by the district attorney in his closing argument to the jury, to-wit: "The time has come when officers of Floyd County ask you for your backing, and if you do not wish to do that they can't enforce the law no matter how zealously they try to enforce it. A one-hundred-dollar fine will not stop law violations. If it would, that is all I would ask. They can make that much profit off of a few cases of liquor." His objection to the remarks complained of was that it was inflammatory, prejudicial, and not based on any evidence. We think that this bill is really deficient in that it fails to show that it was not provoked by appellant's attorneys, nor was there any request made to instruct the jury not to consider the same. In support of the opinion here expressed, we refer to the following authorities: Davis v. State, 32 Tex.Crim. R.; Miller v. State, 35 Tex.Crim. R.; Morris v. State,35 Tex. Crim. 313; Levine v. State, 35 Tex.Crim. R.; Beason v. State, 43 Tex.Crim. R.; Dodd v. State, 44 Tex.Crim. R.; Busby v. State, 48 Tex.Crim. R.; and Felder v. State,59 Tex. Crim. 144. Moreover, he made a blanket objection to the entire argument, part of which was not improper, therefore, he should have specifically pointed out the improper argument, and addressed his objection thereto. See Newton v. State,114 Tex. Crim. 537; and Pendergrass v. State, 97 Tex.Crim. R..
Finding no reversible error in the record, the judgment of the trial court is affirmed.
Opinion approved by the Court.
ON MOTION FOR REHEARING.