Lindsey v. State

Appellant was indicted and convicted for unlawfully possessing intoxicating liquor for sale and his punishment assessed at one year in the penitentiary.

Appellant assails the validity of the indictment by motion to quash and in several other ways because the indictment alleges the defendant *Page 608 had whiskey in his possession for sale, that the law made possession of more than one quart of whiskey prima facie evidence of guilt, that the proof of the State would and did show appellant had more than one quart in his possession, that the law required everything necessary for proof to be alleged in the indictment and that the indictment failing to allege more than one quart there was a variance in the allegation and proof, etc. We are unable to agree with this contention. The law makes the possession of any amount of whiskey for sale a violation by law and attempts only to regulate or affect the question of proof where it is shown more than one quart is found in defendant's possession. We fail to find any error in the ruling of the trial court in refusing to quash the indictment nor in refusing to instruct a verdict by reason of the allegations thereof or in admission of evidence relative thereto.

In bill of exception No. 2, complaint is made to the introduction of alleged judgment of the county court, but said bill fails to set out said judgment nor state the contents of same, and therefore, is so defective we are unable to tell whether any error was committed or not. This court has repeatedly held it cannot consider such bills. Branch's P. C., Sec. 207, citing James v. State, 63 Tex.Crim. Rep.,138 S.W. 61; Hubbard v. State, 251 S.W. 1054, and many other decisions.

Bills of exceptions four, five and six, are made up of question and answer from which the statute prohibits this court from considering. C. C. P., Art. 846.

Bill of exception nine, complains of the refusal of the court to give a special charge based upon the argument of the district attorney; this bill as qualified by the judge fails to show any error.

We have carefully examined the record of this case and are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

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.