Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years. *Page 313
The indictment charged that appellant did "unlawfully transport spirituous, vinous, malt and intoxicating liquors, not for medicinal, mechanical, scientific or sacramental purposes." This sufficiently charged the offense. The law did not require an averment that it was not transported for the purpose of sale. Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 472.
According to the State's evidence, at the time of the occurrence, appellant was seen by the witness Autry; also by Moore, the sheriff. Later Autry and appellant met in the town of Winnsboro and a conversation took place in which Autry admonished the appellant that he would have trouble unless he amended his ways in the respect in question. Appellant said that at the time he met the sheriff he was scared and that if the sheriff had stopped him at once, he would have caught him. Autry told appellant that if he would quit like he had promised, he (Autry) was glad that the sheriff did not catch him, but that unless he did quit, he was bound for the penitentiary. To this appellant assented and that there was an old boy in Winnsboro who wanted appellant to bring him a couple of quarts, and that he had told the party that after doing so, he was through. There was no objection to the introduction of this testimony, but there is a complaint of the argument of the county attorney in which he said that the "appellant was a boot-legger and was peddling whisky over the country." Upon objection to the argument, the court told the jury that there was no evidence that appellant was selling liquor and that the argument was improper. In qualifying the bill, it is shown that the county attorney had told the jury that there could be no conviction for selling whisky as appellant was charged with transporting it. We think the inference that appellant was peddling whisky was not an improper one from the conversation mentioned. The argument of the county attorney, based upon the conversation to which Autry testified, had sufficient warrant in the evidence to exclude it from the rule which renders an argument obviously harmful.
In testing the qualifications of the veniremen, the court inquired whether they were each householders in the county or free-holders in the State. It is claimed that it was ascertained after the verdict that one of the jurors was not qualified in the respect mentioned. Facts showing his status were developed. A recital of them is deemed unnecessary, but it may be said that it is doubtful whether this objection would have been tenable if made at the time. There was no contention that the juror was not fair and impartial, and his service on the jury did not vitiate the verdict. See Squyres v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 1029 and cases therein cited.
The record presenting no error, the judgment is affirmed.
Affirmed. *Page 314
ON REHEARING. April 30, 1924.