The opinion
ON REHEARING.
June 20, 1923.
LATTIMORE, Judge.
— In his motion for rehearing appellant
insists that the indictment is fundamentally erroneous in that it failed
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to charge that the purpose of appellant and his alleged co-conspirators in the unlawful manufacture of liquor was not within one of the exceptions contained in the Dean law. In other words, while it is admitted that it is not necessary for an indictment charging directly the unlawful manufacture of intoxicating liquor, under the present statutes, to allege that same was not for sacramental, scientific, medicinal or mechanical purposes, — still it is insisted, in alleging a conspiracy to commit such felony, the indictment should negative the exceptions contained in the statute. Our examination of the authorities does not lead us to accept the appellant’s conclusion in this regard. All of the authorities in this State seem to hold that it is not necessary in alleging a conspiracy to commit an offense,- to allege the offense intended with even the fullness or particularity necessary in an indictment charging only the commission of the offense thus said to be in contemplation. This rule will be found announced in the early case of Brown v. State, 2 Texas Crim. App. 115, and seems to have been followed in the few cases charging this offense. This being the only question raised on appeal, and not being able to agree to the position of appellant, the motion will be overruled.
Overruled.