Allen v. State

237 S.W. 938, 91 Tex. Crim. 105, 1922 Tex. Crim. App. LEXIS 84

Opinion

HAWKINS, Judge.

—Conviction is for the possession of intoxicating liquor. Punishment assessed at two years confinement in the penitentiary.

By the Acts of the Thirty-sixth Legislature the possession of intoxicating liquor was made an offense unless it was possessed for medicinal, mechanical, scientific or sacramental purposes. The Thirty-seventh Legislature (Acts First and Second Called Sessions) page 233) in effect repealed that provision of the law making the possession of intoxicating liquor an offense, except where the possession was for the purpose of sale. Indictment in this case, failing to allege that the possession was for the purpose of sale, charges no offense against the law as it now stands. Petit v. State, 90 Texas Crim. Rep., 336; 235 S. W. Rep. 579; Francis v. State, (235 S. W. Rep. 580; No. 6772, Ex parte Doc Mitchum, 237 S. W. Rep., 936 (opinion delivered February 1, 1922). In the latter case will be found a discussion to some extent explaining more in detail our views with reference to the effect of the amendment by the Thirty-seventh Legislature.

Because of the defect pointed out in the indictment, resulting from the amendment referred to, the judgment of the trial court will be reversed and the prosecution ordered dismissed under the indictment in its present form. • Beversed and dismissed.