The indictment charged the pursuit of the occupation and business of selling intoxicating liquors in violation of law, and charged, as was required by the statute, that pursuant thereto appellant made two sales to H.H. Alexander, and added the following: "The said Earl Fisher did make other and different sales of intoxicating liquors in violation of said law, to persons whose names are to the grand jurors unknown, and did then and there in the County of Taylor and State of Texas, during the months of November and December, 1916, and the month of January, 1917, and anterior to the *Page 573 presentment of this indictment, make more, at least, than two different sales of intoxicating liquors, in violation of said law, to some person or persons to the grand jurors unknown."
In his charge the court submitted the matter to the jury as follows: "Now, if you believe from the evidence, beyond a reasonable doubt, that at the time alleged in the indictment local option was in force and effect in said Taylor County, and that the sale of intoxicating liquors was prohibited by law in Taylor County, Texas, if such were the case, and that the defendant on or about the 9th day of January, A.D. 1917, did, in the County of Taylor and State of Texas, engage in and pursue the occupation and business of selling intoxicating liquors in said Taylor County, Texas, if he did do so, and that in pursuance thereof the said defendant, within three years next preceding the 15th day of February, A.D. 1917, did make as many as two sales of intoxicating liquor in said Taylor County, Texas, if he did do so, as charged in the indictment, then you will find the defendant guilty of unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquor in territory within which the sale of intoxicating liquor is prohibited by law, and assess his punishment at confinement in the State penitentiary not less than two and not more than five years, as in your discretion you will determine and so state in your verdict. Unless you should so believe from the evidence, beyond a reasonable doubt, you will acquit the defendant."
It was held by this court in Fitch v. State, 58 Tex. Crim. 366, that an indictment under this statute was required to give the name of the alleged purchaser of the intoxicating liquor, touching two sales designated as essential in the statute. This holding has been uniformly adhered to, notably in Mizell v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 125; Whitehead v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 583, and numerous other decisions.
The appellant excepted to the charge quoted above, upon the ground that it failed to require the jury, as a predicate for conviction, to determine from the evidence that two sales of intoxicating liquor had been made to the person designated in the indictment as the purchaser; and by it the jury was authorized to convict the appellant without finding the specific sales named in the indictment were made. Appellant also requested a special charge advising the jury that there could be no conviction unless they found from the evidence that two sales of intoxicating liquor, as charged in the indictment, had been made to H.H. Alexander. There was evidence that the sales were made to H.H. Alexander as alleged. There was also evidence that appellant made a sale of intoxicating liquor to a witness by the name of Walker. Appellant insists that in this condition of the record harmful error was committed by the failure to give the jury a clearer understanding that appellant's conviction could only be sustained in the event of a finding that he made two sales to Alexander, and that a finding that one sale was made to Alexander and one sale was made *Page 574 to Walker would not authorize a conviction, because Walker was not named in the indictment as a purchaser. In writing the original opinion our impression was that appellant's rights in this respect had been protected by the paragraph of the charge quoted, which advised the jury that two sales as charged in the indictment were requisite. In reaching this conclusion we overlooked the fact that the indictment contained, in addition to the allegation that sales were made to Alexander, a general allegation that sales were made to unknown parties. In view of this last allegation the jury may have been misled by the charge given so as to conclude that although only one sale to Alexander was proved, that a sale to Walker, the unknown party described in the indictment, would justify a conviction. In the case of Rhodes v. State, 75 Tex.Crim. Rep., 172 S.W. Rep., 252, exactly the same question was before the court, and Judge Harper, delivering the unanimous opinion of the court, held that reversible error was committed by the trial court in giving a charge like the one given in this case and refusing to correct it in a requested special charge in substance like the one refused by the court in this case. The Rhodes case, supra, is conclusive against the State, and the original opinion being in conflict therewith was erroneous. We are not to be understood as holding that in a case where the names of the purchasers are unknown and can not be ascertained by the grand jury, that an indictment can not be drawn and the prosecution maintained for this offense by following the procedure defined by the decisions of this court construing article 456, C.C.P., and listed in Vernon's C.C.P. under said article.
We order that the judgment affirming this cause be set aside, and that for the error pointed out the judgment of the lower court be reversed and the cause remanded.
Reversed and remanded.