Woods v. State

188 S.W.2d 391, 148 Tex. Crim. 520, 1945 Tex. Crim. App. LEXIS 797

Opinions

DAVIDSON, Judge.

The unlawful sale of whisky in a dry area is the offense; the punishment, a fine of $1,000.00 and six months in jail.

The purchaser named in the information testified that he purchased from appellant the bottle of whisky exhibited before the jury. This, together with the proof showing the area, wherein the sale and purchase were made to be dry within the meaning of the Liquor Control Act, constituted a prima facie case of guilt authorizing the jury’s verdict. Appellant’s contention that the facts are insufficient to support conviction is overruled.

It is here for the first time insisted that venue was not proven, as alleged. No issue was made as to this question upon the trial of the case and, by reason thereof, the presumption prevails in this Court that venue was proven. Art. 847, C.C.P.; Guidry v. State, 116 Tex. Cr. R. 294, 31 S. W. (2d) 633.

We are unable to follow appellant in his contention that the charge of the court did not charge upon the question of reasonable doubt. The charge before us shows that the jury was instructed to acquit appellant if there existed in their minds any doubt as to his guilt.

We agree with appellant that the penalty inflicted in this case is rather severe, especially in view of the fact that the 'State’s case showed only a single sale with no attendant aggravating circumstances; but the amount of punishment to be inflicted is for the jury — and not for this Court — to determine. Venn v. State, 105 Tex. Cr. R. 19, 184 S. W. 955.

No reversible error appearing, the judgment of the trial court is 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.