The indictment charged that the appellant sold spirituous, vinous and intoxicating liquors and malt liquors capable of producing intoxication. This is the language used in Sec. 1 of Chap. 61, of the Acts of the Thirty-seventh Legislature, mentioned in the original opinion.
In the fourth paragraph of the court's charge, the jury is told that if they believe that the appellant sold to the purchaser named in the indictment, spirituous, vinous and intoxicating liquors, or malt liquors capable of producing intoxication, they should find appellant guilty, or if they had a reasonable doubt thereof, they must acquit him.
The court, in the third paragraph of the charge, told the jury that the law upon which the prosecution was founded was that embraced in the terms of Sec. 2 of the Act of the Legislature mentioned, in which *Page 498 the offense described is the sale of spirituous, vinous or malt liquors containing an excess of one per cent of alcohol by volume. Sections I and 2 of the Act denounce separate offenses. This was held in Estell v. State, 91 Tex.Crim. Rep., and other cases. The statement setting out the terms of the law under which the prosecution is founded is inaccurate. The prosecution was under Sec. 1 of the Act in question. No exception was reserved to the inaccuracy. It is merely an abstract statement. The other paragraphs of the charge definitely informed the jury upon what facts a conviction might be predicated, and the facts so described coincide with those in Section 1 of the chapter in question and also with the indictment. The fault in the charge is not one demanding notice in the absence of objection.
The other matters mentioned in the motion for rehearing were properly disposed of and sufficiently discussed in the original hearing.
The motion for rehearing is overruled.
Overruled.