*592ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant again complains because of what he terms a failure in the corresponding of the allegata and probata in that the complaint and information allege that an election had been held in Red River County in 1902 to determine whether or not the sale of intoxicating liquors, to-wit: whisky, should be prohibited, etc., in said county.
We are cited to Article 16, Section 20 of the State Constitution, prior to the amendment of 1919, which reads as follows: “The legislature shall at its first session, enact a law whereby the qualified voters of any county * * * or * * * subdivision * * * as * * * designated by the commissioners’ court * * * may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”
It is shown that the sale of intoxicating liquors was by a majority vote prohibited in such county in the year 1902, and the complaint now presents itself that the information and complaint should not have specialized by using the word “whisky” wherein there occurs the phrase “after an election had been held by the qualified voters of said county in accordance with law to determine whether or not the sale of intoxicating liquors, to-wit: whisky, should be prohibited in said county,” etc.
Evidently such a complaint would be unquestioned under the amendment of the State Constitution which allows elections to be held in order to determine the sale of different kinds and character of intoxicating liquors. In our judgment the word “whisky” under this prosecution is but surplusage, and could be eliminated and do no violence to good pleading. The pleadings allege that such an election was held relative to prohibiting the sale of intoxicating liquor, which was the only kind of election permissible under the Constitution in force in 1902, and we think the statement of the general term “intoxicating liquor” includes all intoxicants of any kind, and the word “whisky” can be treated as surplusage and still leave a good complaint and information. It seems to us that this makes a fair correspondence between the allegation and the proof.
In the condition in which we find this record we think the original opinion herein properly disposed of all further contentions set forth in this motion, and the same is overruled.