251 S.W. 1090 | Tex. Crim. App. | 1923
Lead Opinion
Conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.
Appellant conducted a cold drink stand. A search of his premises revealed that there were four one-gallon bottles of whisky in his possession. The witness Woodall called at the appellant's place of business and told him that Jimmie Binson wanted a pint of whisky. Appellant delivered to Woodall a bottle filled with liquid which had the appearance of whisky and he received from Woodall in payment therefor the sum of three dollars. Woodall then delivered the bottle to Binson, who was a negro porter at a certain hotel. Massey, a guest at the hotel, asked Binson to get him some whisky and gave him a five-dollar bill for that purpose. Binson returned with a pint of whisky which he delivered to Massey. Binson gave Massey no change.
The evidence is deemed sufficient to sustain the finding by the jury that the appellant possessed intoxicating liquor for the purpose of sale.
The indictment charged that the appellant "did unlawfully possess liquor capable of producing intoxication, for the purpose of sale." It is claimed that the indictment charges no offense. The statute denouncing the offense describes the articles prohibited in these words:
"***spirituous, vinous, or malt liquors, or medicated bitters, capable of producing intoxication, or any other intoxicantwhatever."
See Acts of 37th Leg., 1st Called Sess., Chap. 61. That chapter is amendatory of certain sections of Chap. 78, Acts of Thirty-sixth Leg., 1st 2nd Called Sess., in which the prohibited articles are described in the same manner. In one of the sections of that Act, it is declared:
"The words `intoxicating liquors' or `liquors' hereafter used in this Act shall be held to include and comprehend all liquors referred to in the first and second sections of this act."
The term "liquor" in prohibition laws has often been treated as synonymous with intoxicating liquor. See Words Phrases, 2nd Series, Vol. 3, p. 153; Carswell v. State,
The necessity of the pleader departing from the language of the statute is not perceived. This practice often leads to confusion and reversals, and always to the presentation of additional questions for decision on appeal. In the present instance, however, we are of the opinion that the indictment charges an offense.
The prosecuting attorney, in the course of his argument, said:
"Gentlemen of the Jury, I know you will convict the defendant if you follow the precedent you have heretofore lain down."
Appellant's counsel interposed an objection and the court stopped the prosecuting officer, rebuked him for using the language and instructed the jury that it was improper. It was withdrawn from their *507 consideration. It is stated in the bill that exception was reserved to the remarks for the reason that the jury had been trying similar cases and had rendered verdicts of guilty. This is simply stated as a ground for the objection and is not verified by the trial judge as a matter of fact. We do not regard the matter as presented in the bill as one authorizing a reversal of the judgment.
No errors appearing, the judgment is affirmed.
Affirmed.
Addendum
Appellant files a motion for rehearing in which he questions the correctness of our opinion holding the indictment in this case sufficient. We have again reviewed the subject. Our Constitution and statutes make penal the sale of spirituous, vinous and malt liquor and medicated bitters "capable of producing intoxication." This latter phrase qualifies each of the four kinds of liquor named, and we conceive that an indictment which charges either separately or jointly the sale of spirituous, vinous or malt liquor or medicated bitters, would be fatally defective if it did not also charge that said liquor was capable of producing intoxication, where the prosecution was brought under the first section of the Dean law. The essence of the crime attempted to be charged is the sale of intoxicating liquor. In prosecutions under former liquor laws in this State, it was held not necessary to describe or name in the indictment the particular intoxicating liquor sold. Piper v. State,
"It is a well settled and accepted rule that an indictment for the unlawful sale of keeping of liquors need not specify the particular kind of liquor which it is expected to prove at the trial. That is, if the indictment charges the sale of `spirituous' or `intoxicating' liquor, *508 or uses any other general term employed in the statute, it will be sufficient without an additional allegation that the liquor was whisky, rum, gin, wine, beer, etc. The class or species of the liquor sold is not a material ingredient of the offense, and the defendant is not entitled to more detailed information on this point, if the other allegations of the indictment describe the particular transaction with sufficient certainty to identify it. And in some states, where the statutes prohibit the unlicensed sale of `spirituous, vinous or malt liquors,' it is held that the particular kind of liquor alleged to have been sold, whether spirituous, vinous, or malt, need not be named in the indictment by either of those terms; it is sufficient to allege that the defendant sold `intoxicating liquor.'"
Mr. Black cites many authorities from most of the states of the Union in support of this text. In Russell v. State,
The remarks made by the county attorney to which exception was reserved by appellant were improper, and the court instructed the jury not to consider them. The matters embraced in such remarks were well within the recent knowledge of the jury and we are unable to perceive how a reference to them by the attorney could be of that materially injurious character which would justify us in reversing this case.
The motion for rehearing will be overruled.
Overruled.
