Appellant urges in his motion herein that the trial court erred in charging the jury as to the penalty provided by law for the offense of the unlawful possession of beer for the purpose of sale in a dry area. His contention is that the penalty for the possession of beer in a dry area, for the purpose of sale, is by a fine of not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment, as found in Article 667-26, Vernon's Texas Statutes, 1938 Supplement Penal Code, it being a portion of H. B. 5, 45th Legislature. In our judgment this penalty is provided as punishment for one who is transporting beer from one wet area to another wet area, through a dry area, who fails to provide himself with a written statement furnished and signed by the shipper of said beer, showing the name and address of the consignor and the consignee, the origin and destination of such shipment, etc. *Page 467
We think that the punitive article denouncing the possession of beer for the purpose of sale is found by a reference to Article 1 of such H. B. 5, Section 5, as shown under Art. 666-4 (b) of said Vernon's Supplement, supra, as follows: "(b) It shall be unlawful for any person in any dry area to manufacture, distill, brew, sell, possess for the purpose of sale, import into this State, export from the State, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose of sale, to bottle, rectify, blend, treat, fortify, mix or process any liquor, distilled spirits, whisky, gin, brandy, wine, rum, beer or ale."
We then find under this same article, shown as Article 666-41, the following: "Any person who violates any provision of Article 1 of this Act for which a specific penalty is not provided shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than one year."
In our judgment this is the penalty provided for the unlawful possession, for the purpose of sale, of beer in a dry area. We note that the county judge instructed the jury relative to the penalty as just above quoted, except that he went further and added at the last "or by both such fine and imprisonment." However, we note that the punishment herein awarded the appellant was only a fine of $125.00, and we can see no basis for a complaint herein by the appellant as he was not called upon to suffer from both such fine and imprisonment, but was merely assessed a pecuniary fine. See Terrell v. State, 174 S.W. Rep. 1091. In the latter portion of our original opinion we had no intention of holding that the proper penalty herein contained the provision of an alternative punishment of both such fine and imprisonment, but we merely do hold that the mistake in such charge did not injure the appellant.
The motion for rehearing is overruled.