Fullylove v. State

279 S.W.2d 357, 161 Tex. Crim. 629, 1955 Tex. Crim. App. LEXIS 1511

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 1955
• Docket: 27451
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is the possession of whiskey for the purpose of sale in a wet area without having procured a permit from the Texas Liquor Control Board, with prior offenses of like character alleged to enhance the punishment; the punishment, two years in jail and a fine of $2,000.00.

Inspector Pierce of the Texas Liquor Control Board testified that at approximately 11:25 p.m. on the night in question he, in company with Inspector Giles, went to the home of the appellant in the city of Dallas and told the appellant that he wanted to buy a pint of whiskey, that the appellant said that he had just been raided and did not have any whiskey in the house but would go to the liquor store and get some. Pierce stated that the appellant left the house and returned in a few moments with four half-pints of whiskey, two of which he sold to the witness. The appellant was then arrested and all the whiskey seized.

It was established that no permit had been issued to the appellant by the Texas Liquor Control Board, that the sale was made in Precinct No. 1 of Dallas County, and the appellant was shown to be the same person who had been convicted in the two prior offenses plead for enhancement purposes.

The appellant did not testify or offer any evidence in his behalf.

Only two contentions need to be discussed. As stated, the information charged the possession in a “wet” area. There was no proof offered on the “wet” or “dry” status of Precinct No. 1 of Dallas County. Appellant objected to that portion of the court’s charge wherein he told the jury that Justice Precinct No. 1 of Dallas County was a “wet area” on the ground that there was no proof to support the charge. So far as we have been able to determine, this question has been before this court only once. In Sanders v. State, 143 Texas Cr. Rep. 216, 157 S.W. 2d 910, we said:

“In his motion for rehearing, appellant insists that there was no proof showing that Hockley County was a ‘wet’ area. * * * Moreover, under the terms of Art. 666-23, Vernon’s Annotated Penal Code, all area of the state is ‘wet,’ except that which has been determined to be ‘dry.’ Unless the proof shows that the area is ‘dry,’ it is by law ‘wet.’ ”

In support of the conclusion reached in the Sanders case, we quote a part of the cited article:

“Whenever the term ‘dry area’ is used in this Act it shall mean and refer to all counties, justice precincts, incorporated cities or towns wherein the sale of alcoholic beverages had been prohibited by valid local option elections held under the laws of the State in force at the time of the taking effect of Section 20, Article XVI, Constitution of Texas in the year 1919. It likewise shall mean and refer to. any such areas where sale of such alcoholic beverages shall be prohibited under the terms of this Act.

“The term ‘wet area’ shall mean and refer to all other areas of the State.” (Underlining ours.)

We conclude that, though it is always necessary to prove the dry status of an area, no proof is required that the area is not dry if the offense is alleged to have been committed in a “wet” area.

Appellant next contends that the proof of the prior convictions was insufficient to support the judgment in that the judgments in the prior cases recited in the heading,' “Violation Liquor Law” and “Vio Liquor Law” but nowhere in the body of the judgments was the nature of the offense set out.

The information set out prior convictions in Causes Nos. 361-B and 1844-B in the County Criminal Court No. 2 of Dallas County, which were alleged to be offenses of like character to the primary offense charged.

In support of these allegations, the state introduced the informations in causes numbered 361-B and 1844-B filed in the County Criminal Court No. 2 of Dallas County, each of which charged the appellant with the offense of possession of liquor for the purpose of sale in a wet area.

The state also introduced the judgments in causes numbered 361-B and 1844-B in the County Criminal Court No. 2 of Dallas County.

In Frazier v. State, 159 Texas Cr. Rep. 263, 262 S.W. 2d 501, we had a very similar question. There we said that the judgment and the information might be read together in determining whether the proof of prior convictions supported the allegation in the information.

Finding no reversible error, the judgment of the trial court is affirmed.