*1 keeping instant affidavit and search warrant are in with of the statute mentioned and are therefore not subject to the defect claimed. position takes the inasmuch as the affiants whisky affidavit for search warrant had information that being unlawfully possessed they in the house should have whisky general by descrip- the same as rather than beverage”;
tion of “alcoholic that failure to do so rendered the legal proposition affidavit insufficient under the article may seized in the search must “as be described near as be.” words, appellant’s Art. Sec. Const. other it is conten- tion that when in affiants to affidavit for search are warrant specific description property desired seized, specific description to be searched for and must be general description used in the affidavit and and a warrant property will not suffice. agree. term,
With this contention do not we “as near may be,” provision as as used in the of the constitution men- tioned, powers searching tois define and limit the officer by description seized, of that which is to be searched for and property not to limit authorized to be taken in the general description search. A property to be searched for required. seized all that was being Whisky, beverage, an alcoholic was within the defi- nition of that term and" could therefore be seized the search- ing officer, along with all beverages other alcoholic a result of the search. rehearing
The motion for is overruled.
Billy Ray Palmer v. State. April 12, No. 24741. Appeal April 26, On Reinstatement of *2 McKinney McKinney, Cooper, & appellant. for George Blackburn, Attorney, Austin, State’s for the State. WOODLEY, Judge. guilty by was found a the verdict of whiskey dry
sale area, punishment being in a days’ at a county jail. confinement in the $200 record, No is found in the the absence of which in. jurisdiction this appeal. court without appeal is therefore dismissed. Opinion approved by the court.
ON MOTION TO REINSTATE APPEAL.
WOODLEY, Judge. having
The record perfected, appeal been is reinstated. complaint charging addition to 2, 1949, appellant whiskey sale of on October had convicted of an of like character in the on count court another charged pos- and information was with the unlawful whiskey, purpose for the this session sale of but count not submitted to the Burrow, court,
L. C. as witness clerk of testified for the state from the records the court as July 14, 1949, infor- viction of mation, in addition thereto whiskey purpose and an- for the of sale on June transportation “possession and other whiskey the offense of April another on 1947. Still sale” *3 following against appellant in conviction 1946 shown something against “I the de- statement of said witness: 6008, Bill vs fendant Palmer, in The is State of Texas number 5, September 1946, punishment and date is is $100.00 guilty.” costs. Plea of explained except prior
The witness that the conviction cases, 14, knowledge July 1949, personal of he had no about the reading merely the but was from court’s records.
Appellant objected the introduction of evidence of to such convictions, requesting former and filed a written motion that jury testimony the the to be instructed not to consider relative any liquor by appellant, the laws other than that violation of 14, and October motion, objection and action The court overruled which such exception. complained by proper the court bills of admitting proof trial such court was in error in offenses, refusing in with- convictions extraneous to draw the 18 Tex. Jur. Sec. 31. the from See proof in the of- state confined should have been its alleged charged, prior in presently and the fense seeking the and information for the punishment. enhanced regard punishment in the event conviction, jury the as follows: the trial court instructed guilty person provides any statute further
“Our
539 violating guilty of said be the statute shall deemed upon punished by of a misdemeanor conviction shall be * * *, by imprisonment of not less than Two Hundred Dollars or county years, jail in than not more Two both imprisonment.” such fine and finding appellant guilty
In the event of their of the sale punishment presently charged, was told assess within such limits.
It is punish- observed that such is double the charged. provided 666-41, ment for the offense See Art. P. C. authority The trial court appel- was without to assume that previously convicted, lant had been so or to such determine State, fact from 307, Rep. the evidence. Moore v. See Crim. 227 S. 2d 219. W.
In order to enhance for misdemeanor under C., the terms of Art. prior it was essential that upon viction relied and be appropriate beyond that under instructions the support reasonable doubt from evidence sufficient such find- ing, guilty presently the accused is of the offense was, commission, also that he to its aof State, like offense. Scott See v. 150 Tex. R. Cr. S. W. 2d 945. *4 overruling appellant’s exception The trial court erred charge failing to submit provided by primary requiring law for the
the charged
before the could be enhanced. pointed out, For the errors is reversed and the cause remanded.