On Motion for Rehearing.
HAWKINS, J.Appellant most respectfully, but persuasively, argues that we were wrong in holding that the indictment charges only one offense, and was therefore not duplicitous. We still believe the law is against him on his contention. From 23 Cyc. at page 228, subd. (c), we quote:
“In an indictment for an unlawful sale of liquor, in the description of the article sold, it will generally be sufficient to follow, the language of the statute on which the prosecution *244is founded; and if the statute prohibits the sale of several enumerated kinds of liquor, in the disjunctive, the indictment may properly allege the sale of each and all of them con-junctively.”
Many cases are cited supporting the proposition. From Jones v. Commonwealth, 104 Ky. 46S, 47 S. W. 328, we quote:
“The indictment' charges that the defendant sold spirituous, vinous, and malt liquors in Hart "ounty, etc. It is contended that it charges three offenses, because it charges that the appellant sold spirituous, vinous, and malt liquors. It is also claimed that they are three offenses that cannot be united, because of the provisions of sections 126 and 127 of the Criminal Code of Practice. Without going into a discussion of the question as to whether or not, as an original question, this court should have given an interpretation to the sections of the Code, as insisted by counsel for appellant, it is sufficient to say that this court in hundreds of cases has treated and regarded as valid indictments charging defendants with having sold spirituous, vinous, and malt liquors. The court therefore regards the question raised by counsel as settled adversely to his contention.”
In Kreamer v. State, 106 Ind. 193, 6 N. E. 341, the defendant was charged with having sold to a minor “intoxicating, spirituous, vinous, and malt liquors.” The court there said:
“Appellant’s learned counsel very earnestly insist in their brief of this cause that the indictment, the substance of which we have heretofore given, is bad for duplicity, in this: That it charges in a single count the unlawful sale of spirituous, vinous, malt, and intoxicating liquors. The indictment is badly constructed, and, on that score, it justly subject to criticism; but we do not think it can be correctly charged with duplicity, in the proper sense of that term, as applied to an indictment or other pleading. It charges a single sale to one person only, for one price, of a number of commodities, the unlawful sale of either one of which commodities would, under the statute, constitute a public offense. In other words, the indictment charges appellant with only one public pífense, punishable with only one punishment. In the recent cases of Davis v. State, 100 Ind. 154, and Fahnestock v. State, 102 Ind. 156, we have held, and correctly so, we think, that such an indictment is not bad for duplicity. See, also, Stockwell v. State, 85 Ind. 522; Stout v. State, 93 Ind. 150; Stout v. State, 96 Ind. 407.”
In State v. Whitted, 3 Ala. 102, accused was charged with selling “spirituous liquors, to wit, rum, brandy, whisky, and gin.” It was urged that the indictment charged four distinct offenses. Judge Goldthwaite dismisses it rather summarily in the following language:
“The form pursued in this indictment has been in use from the first organization of the state, and therefore it is not improbable that this precise question has been made and decided upon every circuit in South Alabama for the last 20 years; but, notwithstanding' the universality of this precedent, we are now called on to decide it as a novel and difficult question. On the merits of the question referred, it may be said that the selling of any of the liquors named would be an offense; but there is no more reason why an offender should be indicted separately for each than there would to charge a thief, who had stolen a suit of clothes, in separate counts for the coat, waistcoat, etc.”
To the same effect are the many other cases cited under the quotation from Oye. As persuasive of the correctness of the holding, we may cite our own Criminal Code, condemning sale of intoxicants to minors, and against permitting it to he drunk on premises where sold, and many other statutes in effect prior to the adoption of the present law, where the approved forms for indictments as given by White & Wilson follow the form used in the instant ease, without ever having been questioned, so far as we have found. That portion of section 1, chapter 61, of the Acts of the 37th Legislature, now under consideration, denounced the sale of intoxicants as an 'offense, whether it be committed by selling spirituous, vinous, or malt liquor, or medicated bitters capable of producing intoxication, or a mixture of any two or more of them.
The motion for rehearing will be overruled,