275 S.W. 1010 | Tex. Crim. App. | 1925
Lead Opinion
The indictment contained three counts. The first charged possession of mash for the purpose of manufacturing intoxicating liquor, the second, the manufacture of such liquor, the third, possession of a still, equipment, supplies, etc., for the purpose of manufacture. The first count only was submitted. Defendant was convicted, his punishment being assessed at one year in the penitentiary.
The verdict was general. The first count only being submitted the verdict will be referred to that count. Parks v. State, 29 Tex. Cr. App. 597;
The officers went to defendant's premises and some two or three hundred yards from his house found some barrels of mash and a number of other articles of equipment suitable for the manufacture of whiskey. It showed signs of having been used. The mash had reached that stage where it was about ready to be "cooked off." A path was found leading from the point where the equipment was discovered to defendant's house. We think it unnecessary to further state in detail the evidence. It was sufficient to support the verdict.
The special charges requested and refused can not be considered. We find no notation on them advising this court at what time they were presented to the trial judge, neither are there formal bills of exception giving information upon this point. (Clark v. State, 90 Tex.Crim. Rep.,
There are three bills of exception in the record, all of which complain of the reception in evidence of certain testimony. We regret that the bills are not sufficiently full to authorize their consideration. No facts are stated showing the connection in which the evidence came into the case, and the things complained of are stated as grounds of objection only. This is not a certificate of the truth of the matters upon which the objections appear to be based. (See Sec. 209, Branch's Ann. P. C. for collated authorities.)
Defendant attacks the validity of the entire group of prohibitory laws relative to intoxicating liquor based upon the wording of Sec. 2b, chapter 61, 1st C. S., 37th Legislature, which reads as follows: *326
"The manufacture, sale, barter, exchange, transportation, exporting, soliciting, taking orders for, furnishing, and possessing of any of the liquors mentioned in this Chapter if done for medicinal, mechanical, scientific, or sacramental purposes, and after a permit has been duly authorized andgranted by the proper authorities, shall not be punishable under the terms of this Chapter."
We have italicised that portion of the section just quoted upon which defendant's contention appears to be based. Defendant urges that because the legislature inserted in Sec. 2d the words, "and after a permit has been duly authorized and granted by the proper authorities," it sought to place an undue restriction upon the constitutional provision under which these laws were enacted, and that such act of the legislature rendered inoperative all of the laws relative to the subject. We are not in accord with defendant's position upon this point, it has been held in a number of cases that if a party is manufacturing, selling, transporting, or otherwise dealing with intoxicating liquor, for one of the purposes, excepted by the constitution, (to-wit: medicinal, mechanical, scientific or sacramental) he would not be guilty of a violation of the law, even though he had no permit authorizing his act. Burciago v. State, 88 Tex.Crim. R.,
We find no error in the record which would authorize a reversal of the judgment, and as reformed as heretofore indicated, the judgment is ordered affirmed.
Affirmed.
Addendum
State witnesses swore positively to finding on appellant's premises, and not far from his house, two barrels of mash such as whisky is made from; that this mash was ready to be converted into whisky. Near the mash were found a furnace, buckets, a pot which fit the furance, a flake stand, a thump keg, a breaking jar, etc. The use of each of these in the operation of manufacturing whiskey was explained. The mash and paraphernalia were near a pool of water and a thicket. Proof showing appellant in possession of mash both able and read to be converted into whisky, and also of most, if not all, of the paraphernalia used in converting such mash into whisky, would seem enough to justify the jury in concluding that he possessed mash for the purpose of making same into intoxicating liquor.
In a lengthy argument appellant attacks the constitutionality of the law under which the conviction was had. In the absence of some constitutional inhibition our legislature would seem to have the power to enact the statute in question. We know of no such inhibition and none is pointed out.
The motion for rehearing will be overruled.
Overruled. *327