Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
The indictment charged that the appellant: "did then and there unlawfully and not for medicinal, mechanical, scientific or sacramental purposes, and not for any of these purposes, sell and deliver to S.B. Dillingham, one quart of whisky, etc."
In a motion in arrest of judgment, appellant asserts, for the first time, that the indictment was duplicitous in that is charged two offenses, namely, the sale of intoxicating liquor and the delivery of intoxicating liquor.
Without discussing the merits of the contention that the indictment is duplicitous, we are constrained to hold that the criticism of the indictment is one that cannot be made for the first time after verdict. This subject has been discussed in some detail in the case of Melley v. State, No. 7185, not yet reported, in which it is held that under the statute, Article 875, 849 and 850, Code, of Crim. Proc., complaint of a duplicitous indictment is not available except on motto quash the indictment. See also Osborne v. State, 93 Tex.Crim. Rep., 245 S.W. Rep., 928.
The judgment is affirmed.
Affirmed.
ON REHEARING. March 21, 1923.