The appellant offers but one complaint in his motion, and that is a contention that there is a confusion of penalties in the statute denouncing the offense for which the appellant was convicted, his contention being that Art. 666-41 Penal Code, Vernon's Statutes, 1938 Supplement, applies to this offense a penalty of a fine of $100.00 to $1,000, or by imprisonment in the county jail for not more than one year, and that for the same offense Art. 667-26 of said Code provides a penalty of a fine of not less than $25.00 nor more than $500.00, or by imprisonment in the county jail for not more than one year, or both such fine and imprisonment.
The complaint and information allege that appellant possessed whisky for the purpose of sale in Harrison County, a dry area. This possession was denounced in Art. 1 of the liquor enactment, and the punitive clause, Art. 666-41, provides for the punishment of any person violating any provision of Art. 1, for which a specific penalty was not provided, the minimum fine of $100.00, as charged by the trial judge in this cause. Art. 667-25 is found in Art. II of such liquor law, and deals with the transportation of beer, and allows its transportation over and through a dry area, provided it be properly stamped and accompanied by certain written statements showing name and address of both consignor and consignee, origin and destination of such shipment, and any other information required by the Liquor Board or administrator. Art. 667-26 provides that any person who violates any provision of this article shall be punished by a minimum fine of $25.00, etc.
It is our judgment that the greater penalty of Art. 666-41 is applicable in this case; that the lesser penalty of a minimum fine of $25.00, Art. 667-26, supra, does not apply to the offense of possession of whisky for the purpose of sale in a dry area.
The motion is therefore overruled.