146 S.W.2d 1004 | Tex. Crim. App. | 1940
Lead Opinion
The offense is selling wine in a dry area; the punishment, a fine of $100.00.
An inspector of the Texas Liquor Control Board testified that on the 28th day of September, 1939, he bought a quart of wine from appellant. The testimony of appellant's witnesses raised the issue of alibi.
Appellant contends that the State failed to introduce all of the orders necessary to show the dry status of Hall County. Appellant has failed to specify the absence of any essential order from the record. Our examination of the statement of facts leads us to the conclusion that all essential orders were introduced in evidence.
It was shown that after prohibition had been adopted in Hall County subsequent elections had been held, but that such elections failed to change the dry status of the county. This testimony was given orally by the custodian of the records without *61 producing the records relating to such subsequent elections. Appellant objected to the testimony on the ground that the records constituted the best evidence. Under the holding of this court in George Evans v. State. Opinion No. 21,205, delivered November 20, 1940, (140 Tex.Crim. Rep.) it was not incumbent upon the State to prove that the dry status of the county had not been changed by subsequent elections, notwithstanding it was averred in the indictment that such change had not occurred. In short, the court held that the averment mentioned was surplusage.
Article 666-3a of the Texas Liquor Control Act provides:
" 'Liquor' shall mean any alcoholic beverage containing alcohol in excess of four (4) per centum by weight, unless otherwise indicated. Proof that an alcoholic beverage is alcohol, spirits of wine, whisky, liquor, wine, brandy, gin, tequila, mescal, habanero, or barreteago, shall be prima facie evidence that the same is liquor as herein defined."
The court instructed the jury, over appellant's proper objection, as follows:
"You are hereby instructed that wine is a liquor containing alcohol in excess of one-half of one per centum by volume."
It is appellant's contention that the court should have given his requested instruction defining prima facie evidence. If such an instruction would have been proper — and this is not conceded — we are unable to perceive how either the charge the court gave, or the failure to give appellant's requested instruction, could have injured appellant. We say this in view of the fact that subdivision (b) of Article 666-4 of the Texas Liquor Control Act reads as follows:
"It shall be unlawful for any person in any dry area to manufacture, distill, brew, sell, possess for the purpose of sale, import into this State, export from the State, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose of sale to bottle, rectify, blend, treat, fortify, mix, or process any liquor, distilled spirits, whiskey, gin, brandy, wine, rum, beer or ale."
It is observed from the foregoing quotation that the sale of wine in a dry area is inhibited. This court takes judicial notice that wine is an intoxicating liquor. Terry v. State,
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
In his motion for rehearing appellant seriously contends that we erred in our original opinion in holding that the State offered in evidence the orders of the Commissioners' Court of Hall County showing that local option was in force and effect in said county at the time of the commission of the alleged offense. He contends that our holding is tantamount to saying that to offer in evidence the orders is equal to their introduction in evidence, which is contrary to the decision of this court in Lester v. State,
Appellant next complains that we erred in declining to sustain his contention that the trial court committed reversible error in declining to give his special requested instruction to the effect that "liquor shall mean any alcoholic beverage containing alcohol in excess of four per centum by weight." He claims that it was charged in the information that he sold "liquor" and therefore our holding in the instant case is in conflict with our decision in the cases of Pain v. State,
All other matters urged in the motion for rehearing have had our most careful consideration and are deemed to be without merit.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *64