The indictment charges that, in Waller county, about September 18, 1881, the defendants “did, acting together and with each other, unlawfully sell intoxicating liquors to A. J. Dawson, without having obtained license therefor, against,” etc.

The indictment is sufficient to charge the offense therein set out, agreeably to the provisions of the act of March 26, 1881, entitled “An act to prescribe the requisites of indictments in certain cases.” Pamphlet Laws of the 17th Legislature, p. 60. The 5th section is as follows: “In an indictment for selling intoxicating liquors in violation of any law of this State, it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the person to whom sold, without stating the quantity sold. Under such indictment, any act of selling in violation of law may be proved.”

In section 11 is found Form Ho. 1, which relates to the merely formal parts of indictments, generally. It is fur*479ther provided, in section 12, that “Nothing contained in the 11th section of this act shall be construed to dispense with the necessity for proof of all the facts constituting the offense charged in an indictment, as the same is defined by law.” The most important change in the act of March 26, 1881, is to relieve the criminal pleader of the necessity of alleging in indictments the details of the circumstances which go to make up the general offense intended to be charged, and thus changing the circumstances from matter of pleadings to matter of proof. Under section 12, however, it is still the law that the testimony must show all the facts constituting the offense charged in the indictment, as the same (that is the offense) is defined by law. The general offense charged is matter of pleading; the details are matter of proof.

Under this indictment, therefore, the State would have been permitted to prove a selling in quantities of a quart or less, or more than a quart and less than five gallons, or at either wholesale or by retail, and in fact any kind of selling of spirituous liquors for the sale of which an occupation tax is imposed by law.

The court erred in permitting the prosecution to prove a sale to other persons than the one to whom the selling was charged in the indictment. This is a case in which intent does not enter. It is an offense punishable by law to do the act prohibited by the law, and does not involve the question of intent. As a general rule it is only in cases which are mala in se that proof of kindred offenses is admitted, and then only for the purpose of establishing the guilty intent of the person accused. Such proof would be admissible for that purpose in a case which is malum in se and in which the intent enters into the crime, but not in a case which, is purely malum prohibitum. If there had been a question as to whether the selling by the clerk was within the knowledge of the appellants, or within the scope of the clerk’s general instructions, it *480would then have been admissible evidence to show the knowledge of the principals by circumstantial testimony, such as a sale to other persons. Gilbraith v. State, 41 Texas, 567.

There was also error in the charge of the court in stating the amount of the fine. The penalty imposed by law is not less than the amount of the tax imposed, and not exceeding double that amount. It seems from the current of the testimony that the defendants were being prosecuted for selling in quantities of a quart and less than five gallons. The tax imposed for this class of selling is two hundred dollars. There is no proof as to what per cent, of the State tax had been levied for the county; hence it was improper under the proof to charge a higher penalty than double the amount of the State tax, in the absence of proof as to the amount of the county levy.

For these errors the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.