Conviction for a misdemeanor; punishment being assessed at a fine of $100.00.
The prosecution proceeded under subdivision 3(c) of Article 1, House Bill No. 5, enacted at the Regular Session of the 45th Legislature. We quote the section as follows:
"It shall be unlawful for any person to whom a Wine and Beer Retailer's Permit or Beer Retailer's License has been issued or any officer, agent, servant, or employee thereof to have in his possession on the licensed premises, any distilled spirits or any liquor containing alcohol in excess of fourteen (14) per centum by volume."
Section 3(d) of Section 1 of said article provides: "Any person who violates any portion of this Section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by fine of not less than One Hundred Dollars, ($100) nor more than One Thousand Dollars ($1,000), or by imprisonment in the county jail for not more than one year. Any person who is twice convicted under the provisions of this Section shall for the second and all subsequent offenses be punished by fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), and by confinement in the county jail for not less than thirty (30) days nor more than one year." *Page 118
It is manifest that the court was not in error in instructing the jury that the minimum penalty was one hundred dollars.
Appellant operated a beer and wine tavern under a retail dealer's license. On the 10th of September, 1937, an inspector of the Texas Liquor Control Board entered the tavern and bought a bottle of soda water. According to his testimony he observed appellant sell a drink of whisky to one of his customers. Appellant got the bottle out of a safe and poured the whisky into a glass. The customer drank the whisky, handed appellant a dollar and received eighty cents in change. After serving the drink appellant returned the bottle to the safe. Shortly thereafter another inspector entered the tavern and discovered in the safe a half pint bottle about half full of whisky.
Appellant testified that a physician had advised him to use the whisky on some rash on his hands and feet. He denied that he had sold whisky to anyone. He introduced testimony corroborating his version of the transaction.
Appellant contends that the testimony fails to show that he was operating under a retail beer and wine dealer's license. We are unable to agree with this contention. We find in the statement of facts a copy of a permit regularly issued to appellant showing that he was authorized to sell beer and wine containing not more than fourteen per cent. of alcohol by volume on his licensed premises. Appellant admitted that he was engaged in such business, and there was other testimony that he was selling beer at the place in question.
We deem the evidence sufficient to support the conviction.
The judgment 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.
ON MOTION FOR REHEARING.