Bristow v. State

267 S.W.2d 415, 160 Tex. Crim. 111, 1954 Tex. Crim. App. LEXIS 1854

Opinions

WOODLEY, Judge.

Appellant was convicted of transporting whisky and of possessing whisky for the purpose of sale in a dry area, the two offenses being charged in separate counts of the information. The jury assessed a punishment of 6 months in jail and a fine of $300 for each offense and judgment for the respective fines and imprisonment was rendered.

We observe that the judgment does not attempt to cumulate the jail terms and therefore they may be served concurrently and the judgment may be satisfied by appellant paying $600 in fines, and costs, and serving six months in jail.

A number of officers testified for the state. It is shown by their testimony that a search warrant had been issued for the search of appellant’s home, and as the officers arrived, he was seen to back the car he was driving out of his driveway.

The officers stopped him about a half block away and searched him. He had a pint of whisky in his pocket which was seized by the officers and introduced in evidence.

Appellant, in answer to the officers’ question, stated that he had more whisky at the house. A search of appellant’s home resulted in the finding of eight pints of whisky. Lamar County, where the offense occurred, was shown to be a dry area.

Appellant did not testify.

The evidence supports the conviction under each count of the information.

There are no formal bills of exception and no informal bills are indexed in the statement of facts.

Conviction for transporting whisky was shown by direct evidence that appellant had whisky in his pocket when he was driving an automobile and was stopped by the officers.

The possession count was sustained by the finding of other whisky at appellant’s home, the amount being sufficient to invoke the prima facie evidence statute that it was possessed for the purpose of sale.

A charge on circumstantial evidence was not called for under either count.

The legality of the search is not before us in the absence of a bill of exception. We observe, however, that the record contains the following statement of appellant or his counsel: “We have no objection to the search warrant because we expected it and think it has been legally issued.”

The judgment is affirmed.