Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary. *Page 123
This is a companion case to No. 12,315, Ned Banks v. State, this day decided. The same affidavit and search warrant discussed in the opinion in that case is the one here under attack. It follows that the same disposition of the question is called for here.
The facts developed in the two cases are practically the same and are sufficiently set out in the other opinion. The officers seeing a felony being committed were authorized to arrest and search. (For authorities see opinion in cause No. 12315.)
We cannot regard the remark of the district attorney complained of in bill of exception number five as referring by necessary implication to the failure of appellant to testify. The very language set out in the bill shows that it had reference to some prior remark of counsel to which his attention in some way had been directed.
Judgment seems to have been inadvertently entered adjudging appellant to be guilty of manufacturing liquor. The indictment only charged possessing intoxicating liquor for the purpose of sale and the instructions of the court authorized conviction for that offense only. The judgment will be reformed to adjudge appellant guilty of that offense.
As thus reformed the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.