SECOND MOTION FOR REHEARING.
BEAUCHAMP, Judge.Appellant has filed application for permission to file a second motion for rehearing, and has called to our attention decisions of this court to which we had given no consideration.
It appeared to the writer that the original opinion correctly disposed of the motion to quash the complaint and information. We still believe that such conclusion was sound. However, it appears that the decisions of this court in the past have been to the contrary, and the majority feel that they should not be departed from.
It was the purpose of the pleader to lodge the complaint under Section (10) of Article 666-15, Vernon’s Ann. P. C., reading as follows:
*277“It shall be unlawful for any person to knowingly sell any of the products enumerated in paragraphs (1), (2), (3), and (4) for beverage purposes or to sell any of the same under circumstances from which he might reasonably deduce the intention of the purchaser to use them for such purposes.” (Italics ours.)
The complaint and information substantially comply with the foregoing except that it has omitted the use of the word “knowingly.” It occurred to the writer that if he sold the extracts described “for beverage purposes” that he would, of necessity, have to do so “knowingly”, and that this allegation may be interpolated. This, we recognize, can be done only with great care and caution. Our court has held to the contrary in more than one case so far as this particular charge is concerned. We quote from Clark v. State, 12 S. W. (2d) at page 793, as follows:
“Where, in the statute, the word ‘knowingly’ is a constituent element of the offense, an indictment which omits the word ‘knowingly’ is faulty. We are referred by the appellant to the several authorities cited in the opinion of this court in Morris v. State, 93 Tex. Cr. R. 99, 245 S. W. 915. Our examination of them reveals the fact that they are each but illustrative of the requirement that the word ‘knowingly,’ when contained in the statute and constituted an element of the offense is not to be omitted from the indictment. In Stell’s Case, 37 Tex. 440, the word ‘knowingly’ was contained in the statute and omitted from the indictment. The indictment was properly quashed. In Castle’s Case, 23 Tex. App. 287, 4 S. W. 892, the prosecution was upon Article 813, P. C. 1879, in which ‘knowingly’ was an essential element of the offense and was omitted in the indictment. Simon’s Case, 31 Tex. Cr. R. 203, 20 S. W. 399, 716, 37 Am. St. Rep. 802, was a prosecution for incest. The indictment was attacked because of the omission of the word ‘knowingly.’ ”
In view of the .foregoing authority, appellant’s second motion for rehearing is granted. The affirmance of the case is now set aside and the judgment of the trial court is reversed and cause remanded.