Neill v. State

ON state’s motion for rehearing.

GRAVES, Judge.

This is a conviction for a violation of the Pure Food Laws, with punishment assessed at a fine of $500.00.

We find that we were in error in the original opinion in following the decision in our Cause No. 24,424 — L. R. Neill v. State, appeal from Smith County, delivered May 3, 1950, (154 Tex. Cr. R. 549) in that the sale in the present case was alleged to have been made to R. L. Harrison, a retail dealer in meats. In Cause No. 24,424, supra, the sale relied upon was made to Mr. Welch, an employee of the Pure Food and Drug Department of the state, who purchased the meat in that case for purposes of analysis.

In the present case, it is shown that the meat in question was delivered and sold by appellant’s agent for human consumption. Therefore, the original opinion is withdrawn, and we will proceed with a decision of this cause upon its merits.

We find that the motion for a new trial herein was acted upon and overruled on March 2, 1949, and that notice of appeal was given at such time. There is no mention in the record of any time granted in which to prepare and have filed any bills of exception in such cause. Therefore, under the statute, Art. 760, Vernon’s C.C.P., appellant was allowed 30 days for the filing of such bills. We find ten bills of exception in the record, all bearing the file date of May 28, 1949, which was 87 days after the giving of notice of appeal, and 57 days too late, according to the record.

The statement of facts evidences sufficient testimony to support the allegation that appellant sold to Mr. Harrison some horse meat for human consumption. Under the record presented to us, there is sufficient proof of which the jury could base a verdict of guilt.

Thus believing, the state’s motion for a rehearing is granted, the original opinion is withdrawn, and the judgment is now affirmed.