Appellant insists that the Act of the 48th Legislature, (1943) R. S. p. 340, Ch. 221, changed the penalty for the offense *Page 562 of which he was convicted to a fine not exceeding $50.00, and either had the effect of repealing the penalty provided in Art. 666-41, Vernon's Texas P. C., Act of 44th Legislature, (1935) 2d C. S. p. 1795, Ch. 467, or provides a different penalty for the same offense, rendering both penalties inoperative. The general penalty of a fine of not less than $100.00 nor more than $1,000.00, or imprisonment in jail for not more than a year, was affixed to a violation of any provision of the Act"for which a specific penalty" was not provided.
It must be remembered that appellant was charged with and convicted of possessing whisky for the purpose of sale in a dry area, to which offense the general penalty applied.
The Acts of the 48th Legislature (supra) amended the Liquor Control Act by the addition of a new Section 4 (c), which reads as follows:
"(1) It shall be unlawful for any person to consume any alcoholic beverage in any public place, or for any person to possess any alcoholic beverage in any public place for the purpose of consuming the same in such public place, at any time on Sunday between the hours of 1:15 a. m. and 1:00 o'clock p. m., and on all other days at any time between the hours of 12:15 a. m. and 7:00 o'clock a. m.
"(2) Any alcoholic beverage possessed in violation of this Section is declared to be an illicit beverage and may be seized without warrant to be used as evidence of a violation of law, and any person in possession thereof or who otherwise violates any provision of this Section may be arrested without warrant.
"(3) Any person who violates any provision of this Section shall be guilty of a misdemeanor, and upon conviction, shall be punished by a fine not exceeding Fifty Dollars ($50)."
It will be noted that subdivision (1) provides that it shall be unlawful to consume any alcoholic beverage in a public place, or to possess it in such place for the purpose ofconsumption, during certain hours and on certain days, and does not cover the act of possessing it for the purpose of sale. Subdivision (3) of said amendment fixes the punishment for a violation of the acts prohibited in "Section 4 (c)" at a fine not to exceed $50.00.
If appellant had been charged with consuming liquor, or possessing it for the purpose of consumption in a public place at the time designated, there would be some merit in the contention *Page 563 that the wrong penalty was charged, because a special penalty is fixed to the acts last mentioned.
The case of Morgan v. State, 135 Tex.Crim. R., 122 S.W.2d 318, upon which appellant relies has no application in the present case. There the same act was denounced as an offense in two provisions of the statute, and different penalties provided. Such is not the case here.
The motion for rehearing is overruled.