In a forcible motion and argument appellant insists that we erred in the affirmance of this case, basing his contention on the proposition that the indictment charged conjunctively manufacturing spirituous, vinous and malt liquors and medicated bitters capable of producing intoxication, and that the proof showed the manufacture of spirituous liquors, and that the court in his charge to the jury told them that if they believed beyond a reasonable doubt that he made spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, they should convict; in other words, he urges that the testimony supported only one of the means of committing the offense alleged in the indictment *Page 243 and that it was reversible error to submit all of them to the jury.
The propriety of alleging conjunctively various means of committing an offense is affirmed by Article 473 of our C.C.P. and the unbroken line of our decisions beginning with Phillips v. State, 29 Tex. 233. See Hart v. State, 2 Texas Crim. App. 41; Copping v. State, 7 Texas Crim. App., 61; Day v. State, 14 Texas Crim. App., 30. Applicable to the particular point here stressed by appellant we observe in the opinion of Hart v. State, supra, that Mr. Bishop is quoted approvingly as holding that when there be such conjunctive allegations the proof need cover only so muchof the allegation as constitutes a complete crime. So in Copping v. State, supra, it is said:
"But, though the conviction may be for the whole, it is all when proceeded against in this way, regarded as only one offense, subjecting the offender to no more than one penalty. In like manner, the conviction may be for no more than what barely constitutes a crime."
Again in Nicholas v. State, 23 Texas Crim. App., 317, we quote with approval Mr. Bishop as follows: "Discussing the subject, Mr. Bishop says: It is common for a statute to declare that if a person does this, or this, or this, he shall be punished in a way pointed out. Now, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing only one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction `and' where the statute has `or,' and it will not be double; and it will be established at the trial by proof of any one of them. (Bish. Crim. Proc., sec. 436; State v. Smith,24 Tex. 285; People v. Book, 16 N.Y. Weekly Dig., March 9, 1883.)" See also Goodwin v. State, 70 Tex.Crim. Rep..
We do not discuss the many authorities cited by appellant which have been examined by us but are not deemed to support the proposition advanced by him. The authorities we have above referred to and those cited in our original opinion make plain the fact that the indictment herein correctly averred conjunctively the sale of spirituous, vinous, etc., liquors, and from them also we derive support of the further proposition that proof of any one of the means alleged would satisfy the law. We cannot escape the soundness of the corollary that if such be the form of the indictment (as it is in this case) and the proof support any one of the allegations as to the means by which the law has been violated, no injury could follow from an instruction whose terms are in exact accord with those of the indictment in submitting the law to the jury. As said in the above authorities, the allegations of the indictment but allege one *Page 244 offense and the charge in effect submitted but one, and that one appears amply supported by the proof.
Being unable to agree with the contentions advanced by appellant, the motion for rehearing will be overruled.
Overruled.