Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
An attack upon the indictment is made upon the ground that the allegation therein that the appellant did sell "one bottle of spirituous, vinous and intoxicating liquor, capable of producing intoxication" was duplicitous. We think the point is not well taken. The offense is the unlawful sale of intoxicating liquor. The description of the liquor, that is, whether spirituous, or vinous, would at most be but a different means of committing the same offense. In either case, that is, whether spirituous or vinous, the liquor must be intoxicating to constitute the offense. See Black on Intoxicating Liquors, Sec. 12.
In the companion case, Travinio v. State, 92 Tex. Crim. 140, we have considered the same question, stating more fully our reasons for the conclusion reached, together with citations of authorities.
Not before announcing ready for trial, but before the beginning of the argument, the appellant filed an application for a suspended sentence in due form as prescribed by the statute, Art. 865b. The court permitted it to be presented but declined to entertain it as an issue in the case or hear evidence under it upon the ground, as we understand the record, that it was not filed before the announcement of ready for trial, and upon the further ground that in the companion case, the jury had rendered a verdict of guilty against appellant without suspending his sentence. Appellant's attorney explained that he represented the appellant in both cases which were tried in rapid succession, and without full consideration of the matter at the beginning of the trial, he was under the impression that the verdict rendered in the companion case would preclude a consideration of the application for *Page 441 a suspended sentence in this one; that reflecting in the matter, he concluded that under a proper construction of the statute touching the suspended sentence, the verdict in the other case would not be an impediment against the consideration of such a plea until the judgment of the verdict became final. This view of the law has been recently sanctioned by this court in Hill v. State, 91 Tex.Crim. Rep., 240, S.W. Rep., 552; Hill v. State, 92 Tex.Crim. Rep., 243 S.W. Rep., 982. In a previous case, the intimation to the contrary was contained in Weatherford v. State, 73 Tex.Crim. Rep.. While in the statute it is said that the plea should be filed before the trial begins, this is not mandatory, and has been so held in the case of Wilson v. State, 85 Tex.Crim. Rep.. Within certain limitations, we understand that the practice permitting amendment of pleadings prevails in criminal cases. When the matter is one that admits of an amendment, the trial court has the discretion to allow an amendment after announcement of ready for trial, and that this rule, where the ends of justice demand, should, we think, prevail in the matter of an application to suspend the sentence. In the instant case, the trial judge was no doubt influenced in his refusal to allow the plea to be presented to the jury by the previous decision of this court in the case of Weatherford v. State, supra. That being a mistaken view of the law, and resulting in the disregard of the plea for a suspended sentence, a new trial should result.
It is therefore ordered that the judgment be reversed and the cause remanded.
Reversed and remanded.
ON REHEARING February 21, 1923.