Butts v. State

73 S.W.2d 96, 126 Tex. Crim. 563, 1934 Tex. Crim. App. LEXIS 779

Opinions

HAWKINS, Judge. —

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.

Prosecution and conviction was under a count in the indictment which charged that appellant in Winkler County, Texas, possessed “for the purpose of sale liquor capable of producing intoxication.”

No statement of facts is brought forward, the sole attack being on the sufficiency of the indictment, which question was raised by motion in arrest of judgment. We observe that in the charge the court told the jury that “whisky” was a spirituous liquor capable of producing intoxication. Assuming that the court’s instruction was applicable to the facts, leads to the conclusion that the liquor involved was whisky.

It is admitted that under the authorities hereafter mentioned the indictment was sufficient prior to the adoption in 1933 of the amendment to section 20, article 16 of the State Constitution, and the act passed by the 43rd Legislature, Reg. Sess., ch. 116, page 288. See Tucker v. State, 94 Texas Crim. Rep., 505, 251 S. W. 1090; Smith v. State, 110 Texas Crim. Rep., 497, 9 S. W. (2d) 340; Bogan v. State, 114 Texas Crim. Rep., 468, 22 S. W. (2d) 944; Anderson v. State, 116 Texas Crim. Rep., 317, 31 S. W. (2d) 640. It seems to be appellant’s contention that since the passage of the act mentioned under the constitutional amendment referred to an indictment is insufficient unless in addition to charging that accused possessed for the purpose of sale intoxicating liquor, the indictment goes further and describes the liquor as “spirituous,” or if it is vinous or malt liquor, designate it as such, and then follows the designation by an averment that it contained more than 3.2% alcohol by weight. We are not able to bring ourselves to agree ^vith such contention. In our opinion the present indictment charges an offense. If the evidence had developed that the liquor in question was vinous or malt, and contained not more than 3.2% alcohol by weight, and the transaction under inquiry occurred in territory where the possession of such liquor for sale was then permitted, such facts would furnish a complete defense to the offense charged, but we think this would in no wise affect the validity of the indictment.

The judgment is affirmed.

Affirmed.