90 S.W. 179 | Tex. Crim. App. | 1905
This conviction is for violating the local option law — the punishment fixed at a fine of $25 and twenty days confinement in the county jail.
Prosecuting witness, Henry, testified to a purchase of whisky from appellant. He is corroborated in his testimony by the express agent, as to the obtaining of the whisky, and is corroborated to a certain extent by George Phillips — the party for whom the whisky was obtained. The whisky was in the express office, and prosecuting witness let appellant have the money to pay a part of the C.O.D. express charges on the whisky. This placed the cases under the rule laid *100 down in Hilliard v. State, 13 Texas Ct. Rep., 520; Dunn v. State, 12 Texas Ct. Rep., 803; Beall v. State, 12 Texas Ct. Rep., 801; Hutcheson v. State, decided at present term. Appellant's defense was that he gave the whisky to prosecutor; that prosecutor loaned him the money he received from him. This issue was aptly presented to the jury by the court in the main charge, and in appellant's special charge which was given by the court.
In motion for new trial appellant complains that the court misstated the punishment. In the first clause of the charge, the court gave the jury the proper punishment, and then in a later clause, tells the jury, if they find appellant guilty, to assess his punishment "at not less than $25 nor more than $100 and by imprisonment in the county jail for not less than twenty nor more than sixty dollars. The jury gave appellant the minimum punishment, as stated above. We do not think this clerical error injured or could have injured appellant. Lovejoy v. State,
Affirmed.
