Appellants again complain because the complaint and information do not specify what kind of intoxicating *Page 102 liquors were possessed for sale purposes by appellants. These pleadings do allege that such appellants possessed intoxicating liquors for such sale purposes, "to-wit: a liquor containing alcohol in excess of one half of one per centum by volume," etc.
We note that Article 666-4 (b) Vernon's Texas Statutes 1936, Penal Code, says: "It shall be unlawful for any person to manufacture, sell, transport or possess for the purpose of sale, in any dry area, under this or any other act, in this State any liquor containing alcohol in excess of one half (1/2) of one per centum (1%) by volume * * *."
It occurs to us that the words "intoxicating liquors" are mere surplusage and can be eliminated, and the information still charge an offense denounced by the above law.
Appellants again urge the proposition relative to the commissioners' court canvassing the returns not being alleged in the complaint and information. The opinion of Judge CHRISTIAN in the case of Wilcoxson v. State, Cause No. 19614 [134 Tex.Crim. Rep.], takes up some of the cases relied upon by appellants herein, and fully discusses this proposition. The Holloway case, 110 S.W. 745, is sound authority for the proposition that an allegation that the commissioners' court had declared the result of the local option election, and had passed their order prohibiting the sale of such liquors, carried with it the necessary implication that such returns had been properly canvassed by said court. This matter has been gone into thoroughly in the opinion of Judge CHRISTIAN above referred to.
Other matters complained of herein have been decided against appellants' contention in various cases from this same county recently, and no useful purpose will be served in again writing thereon.
The motion will be overruled.