The indictment charged that the offense took place "on or about the first day of September, 1921." It *Page 366 also charged that appellant's possession of the intoxicating liquor was for the purpose of sale and not for medicinal, mechanical, sacramental or scientific purposes.
In his motion for rehearing appellant insists that the indictment was bad because it does not charge possession for the purpose of sale and because it uses the words "on or about." The criticism is unsound. The negative averments are contained in the indictment, and the use of the words, "On or about" as applied to the date of the offense, is not obnoxious to the rule against disjunctive averments. See Morris v. State, 83 S.W. Rep., 1126; Scott v. State, 56 S.W. Rep., 61; Morgan v. State, 7 Amer. Eng. Ann. Cas., p. 776, note.
The point is made that the conviction cannot stand because the manufacture of the liquor and the possession of the liquor embrace but one transaction, and that the appellant having been tried for the manufacture is not amenable to prosecution for the possession. Appellant cites the case of Smith v. State,90 Tex. Crim. 273 (234 S.W. Rep., 894) in which this court said:
"The unlawful possession of intoxicating liquors is a felony when possessed for sale, and the unlawful manufacture of intoxicating liquors is a felony. The two do not necessarily constitute the same act. The possession may be entirely independent of the manufacture, and the possession of equipment may likewise be entirely independent of the possession of intoxicating liquors or the manufacture thereof. It seems to us that the case is one calling for an election."
The record does not show that appellant was tried for the manufacture of the same whisky as that upon which the present prosecution for possession is founded. There is a statement in the motion for new trial that two cases; one for the manufacture and one for possession, were tried at the same time. The motion is not authenticated nor is there any indication that there was objection on the part of the appellant to trying the two cases at the same time. The fault of the court, if any, in trying the two cases in that manner is not brought up for review, nor is there aught in the record which brings the facts out of the principle which we have quoted from the Smith case, supra.
The motion for rehearing is overruled.
Overruled.