Appellant files a motion for rehearing in which he questions the correctness of our opinion holding the indictment in this case sufficient. We have again reviewed the subject. Our Constitution and statutes make penal the sale of spirituous, vinous and malt liquor and medicated bitters "capable of producing intoxication." This latter phrase qualifies each of the four kinds of liquor named, and we conceive that an indictment which charges either separately or jointly the sale of spirituous, vinous or malt liquor or medicated bitters, would be fatally defective if it did not also charge that said liquor was capable of producing intoxication, where the prosecution was brought under the first section of the Dean law. The essence of the crime attempted to be charged is the sale of intoxicating liquor. In prosecutions under former liquor laws in this State, it was held not necessary to describe or name in the indictment the particular intoxicating liquor sold. Piper v. State,53 Tex. Crim. 485, 110 S.W. Rep., 899; Frickie v. State,39 Tex. Crim. 254; Wilson v. State, 55 S.W. Rep. 68. Many authorities are cited by Mr. Willson in his Criminal Forms under the particular form for charging such offenses as they then existed. One charged by indictment with selling spirituous, vinous and malt liquors and medicated bitters capable of producing intoxication, would have no more information for practical purposes as to the particular kind of liquor whose sale would be attributed to him, than he would obtain if merely charged by indictment with selling liquor capable of producing intoxication. It appears from the authorities both elementary and in the opinion of the courts that the only thing he needs to know is that he is charged with selling intoxicating liquor, or to transpose the words, liquor capable of producing intoxication. This seems laid down by Mr. Black in his work on Intoxicating Liquors in Sec. 467 in the following language:
"It is a well settled and accepted rule that an indictment for the unlawful sale of keeping of liquors need not specify the particular kind of liquor which it is expected to prove at the trial. That is, if the indictment charges the sale of `spirituous' or `intoxicating' liquor, *Page 508 or uses any other general term employed in the statute, it will be sufficient without an additional allegation that the liquor was whisky, rum, gin, wine, beer, etc. The class or species of the liquor sold is not a material ingredient of the offense, and the defendant is not entitled to more detailed information on this point, if the other allegations of the indictment describe the particular transaction with sufficient certainty to identify it. And in some states, where the statutes prohibit the unlicensed sale of `spirituous, vinous or malt liquors,' it is held that the particular kind of liquor alleged to have been sold, whether spirituous, vinous, or malt, need not be named in the indictment by either of those terms; it is sufficient to allege that the defendant sold `intoxicating liquor.'"
Mr. Black cites many authorities from most of the states of the Union in support of this text. In Russell v. State,88 Tex. Crim. 582, 228 S.W. Rep. 950, we held an indictment good which charged the accused with the sale of spirituous, vinous and intoxicating liquor. Also in Ex parte Mitchum, 91 Tex. Crim. 62, 237 S.W. Rep. 936, we held sufficient an indictment charging the accused with having in his possession for purposes of sale, intoxicating liquor. In Estell v. State, 91 Tex. Crim. 481, we in substance held that the Dean act practically forbade the sale of liquor "capable of producing intoxication." See also Young v. State, 92 Tex.Crim. Rep., 243 S.W. Rep. 473 and Trevinio v. State, 93 Tex.Crim. Rep., 247 S.W. Rep. 872. It follows that in our judgment the appellant's contention is unsound.
The remarks made by the county attorney to which exception was reserved by appellant were improper, and the court instructed the jury not to consider them. The matters embraced in such remarks were well within the recent knowledge of the jury and we are unable to perceive how a reference to them by the attorney could be of that materially injurious character which would justify us in reversing this case.
The motion for rehearing will be overruled.
Overruled.