Lott v. State

251 S.W. 1070, 94 Tex. Crim. 630, 1923 Tex. Crim. App. LEXIS 274

• Court: Court of Criminal Appeals of Texas
• Decided: May 2, 1923
• Docket: No. 7237.
• Status: Published

Opinions

LATTIMORE, Judge.

Appellant was convicted in the District Court of Webb County of the offense of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is no dispute of the fact that about the date alleged in the indictment appellant was accosted and arrested by some officers while driving a car along a public road in Webb County. Upon search it was discovered that in said car were one hundred and ninety-nine bottles of tequila, which was shown by testimony to be an intoxicating spirituous liquor. The only defense interposed by appellant was that he met a man by the name of Sanchez who asked him if he would take this liquor and carry it down the road and leave it at a certain designated point beyond the town of Encinal, and he was transporting it m pursuance of said agreement and that he had no financial interest in the transaction whatever. Most of the questions that are raised by appellant’s brief and record have been disposed of by us in our opinions in other eases involving substantially the same questions.

By his bill of exceptions No. 1 appellant presents the proposition that the Dean law, by which name the law of this State forbidding the manufacture, transportation, etc., of intoxicating liquor, is commonly called, — is in conflict with the Volstead Act of our National Congress. We discuss this no further than to say that it has been settled against appellant in the case of Ex parte Gilmore, 88 Texas Crim. Rep., 529, 228 S. W. Rep. 199.

Appellant complains by his bills of exception Nos. 2, 3, and 4 of the admission of the testimony of the officers who arrested- him and searched his car, upon the ground that they had no search warrant and such testimony was illegally obtained and admitted. We have settled these contentions against him in the case of Welchek v. State, 93 Texas Crim. Rep., 271, 247 S. W. Rep., 524.

By his bills of exception Nos. 5, 6 and 7 appellant raises the question in various ways that the transportation to be sufficiently charged and to be a violation of the law, must be alleged and proven to have been for the purpose of sale. The cases of Stringer v. State, 92 Texas Crim. Rep., 46, 241 S. W. Rep., 159, and Crowley v. State, 92 Texas Crim. Rep., 103, 242 S. W. Rep. 472, are decisive of these questions against appellant’s contention.

The testimony in the record showing beyond dispute that appellant was over the age of twenty-five years at the time of the commission of the alleged offense, it was not erroneous for the trial court to decline to submit to the jury his right to the benefit of the suspended sentence law. Davis v. State, 93 Texas Crim. Rep., 192, 246 S. W. Rep. 395; Robinson v. State, 92 Texas Crim. Rep., 527, 244 S. W. Rep. 599.

The evidence fully supporting the proposition that appellant was engaged in the illegal transportation of intoxicating liquor, and the jury having adjudged him guilty, and the record containing no reversible error, an affirmance must be ordered.

Affirmed.