Durham v. State

117 S.W.2d 106, 135 Tex. Crim. 45, 1938 Tex. Crim. App. LEXIS 545

Opinions

Christian, Judge.

The offense is selling whisky in a dry area; the punishment, a fine of $100.00.

Appellant pleaded guilty. An inspector of the State Liquor Control Board testified that on the 23d of October, 1937, he bought a half pint of whisky from appellant.

It is shown in bill of exception No. 2 that in his argument to the jury counsel for the State used language as follows: “It is unusual for a defendant not to waive a jury and try the case before the court, and- then come in before a jury and plead guilty.” If the remarks of counsel were improper — and this is not conceded — we are unable to reach the conclusion that they were prejudicial. Not only did appellant enter a plea of guilty but the State introduced proof conclusively showing that he sold whisky in a dry area. The jury assessed the minimum penalty of $100.00. We think the bill of exception fails to reflect error.

Bill of exception No. 4 recites that one of counsel for the State in argument to the jury used language as follows: “If you assess the minimum punishment, you are making yourself an accomplice [referring to the defendant] to go back and commit the same crime.” The jury evidently disregarded the argument, as is evidenced by their action in assessing the minimum penalty. The bill is without merit.

The judgment is affirmed.

The foregoing opinion of the Commission oí Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.