Appellant was convicted in the District Court of Hall County of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.
Appellant made a second application for continuance. Same failed to allege that the absent testimony could not be procured from any other source. The action of the court in overruling the application was in accordance with Art. 609, Vernon's C.C.P. and the authorities cited thereunder.
The indictment contained two counts, each charging a sale of intoxicating liquor, one alleging that the liquor was intoxicating, the other that same contained more than one per cent of alcohol by volume. The State was not required to elect. Baker v. State, 25 Texas Crim. App., 1; Zilliox v. State,93 Tex. Crim. 301, 247 S.W. Rep., 523.
An indictment containing two counts is not for this reason subject to the objection that it is duplicitous. Duplicity is the charging of more than one offense in a single count. It is not necessary that the indictment specify the kind of liquor sold. Travino v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 242.
Appellant denied making the alleged sale and claimed that there was no liquor in his yard or his possession, or on his premises. There was no error in admitting testimony of the finding of three bottles of intoxicating liquor in a mud hole in the yard. The charge of the court restricting the jury's consideration of the testimony of the finding of said three bottles, to the issue of whether same shed light on the purported sale of the liquor charged, is not open to the exception that was taken thereto.
Bills of exception Nos. 9, 10, 11, 12, 13 and 14 are objected to by the Assistant Attorney General because same are in question and answer form. An inspetion of the record reveals that this objection is well taken and said bills will not be considered. Rylee v. State, 236 S.W. Rep., 744. Art. 846 of our Code of Criminal Precedure forbids the presentation of bills of exception in question and answer form except when certified by the trial court as necessary in order to place before this court the setting of the objection. No such showing appears in any of the bills of exception referred to.
The proof of guilt being sufficient, and no error appearing in the record, an affirmance will be ordered.
Affirmed. *Page 219
ON REHEARING. April 2, 1924.