Evans v. State

73 S.W.2d 537, 126 Tex. Crim. 579, 1934 Tex. Crim. App. LEXIS 789

• Court: Court of Criminal Appeals of Texas
• Decided: May 30, 1934
• Docket: No. 16811.
• Status: Published

Opinion

KRUEGER, Judge. —

The appellant was convicted of the offense of unlawfully manufacturing, spirituous, vinous, and malt liquor capable of producing intoxication, and his punishment assessed at confinement in the State penitentiary for a term of two years and six months.

By bills of exception 1 and 2 the appellant assails the validity of the indictment upon which he was tried and convicted in that the indictment failed to charge that the alleged spirituous, vinous, and malt liquor contained more than 3.2 percent alcohol by weight. This question was before this court in the case of W. I. Butts v. The State, * No. 16,726, decided May 23, 1934, in which this court, speaking through Judge Hawkins, said:

“It seems to be the 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 the accused possessed for the purpose of sale intoxicating liquor, the indictment go further and describe the liquor as ‘spirituous’ or if it is vinous or malt liquor, designate it as such, and then follow the designation by an averment that it contained more than 3.2 percent alcohol by weight. We are unable to bring ourselves to agree with such contention. In our opinion the present indictment charges an offense.”

Under the authority of Butts v. State, supra, the appellant’s contention is overruled and the judgment of the trial court is in all things affirmed.

Affirmed.

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

* (Reported on page 563 of this volume.)