Kellum v. State
This text of 278 S.W. 434 (Kellum v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The offense is transportation of intoxicating liquor, the punishment is one year in the penitentiary.
The appellant in his brief makes but one contention and that is that the evidence is wholly insufficient to support the verdict of the jury and the judgment of the court. We cannot agree with this contention. A brief summary of the evidence shows that appellant was driving a Ford automobile in Plainview and when approached by the officers took something in a sack and struck it with a hammer, that the officers secured the sack and .that it was full of broken glass jars, etc., and that a liquid was still running out of it. A number of witnesses testified that' they smelled the sack and the place on the car where the contents of thei jars had been spilled and that they could tell whiskey by the smell, and that whiskey had been in the jars when they were broken. Appellant did not take the stand and offered'no evidence that the contents of the jars was not whiskey, except that one witness testified that appellant had gone after beer. The issue thus raised was one of fact for the jury. The opinion of witnesses based upon the odor of the liquid was competent evidence. It was for the jury to pass upon its weight and credibility. This has been done and from the verdict ar-. rived at it is apparent that the jury believed that the witnesses were telling the truth when they said they could tell from the odor that the liquid in the jars that were broken by the appellant was whiskey.
No complaint is made by the appellant at the court’s action with reference to the charge in submitting this issue of fact and we cannot say as a matter of law that a witness cannot identify a liquid as whiskey by its odor. Hughes v. State, 268 S. W. 960.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed.
*539 The foregoing opinion of the Commission of Appéáls has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
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Cite This Page — Counsel Stack
278 S.W. 434, 102 Tex. Crim. 537, 1925 Tex. Crim. App. LEXIS 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellum-v-state-texcrimapp-1925.