Eubank v. State , 104 Tex. Crim. 628 ( 1926 )

The offense is selling intoxicating liquor, and the punishment is one year in the penitentiary.

The indictment charges that the appellant did unlawfully sell "spirituous, vinous and malt liquor containing in excess of one per cent of alcohol by volume." The state's testimony shows that the prosecuting witness bought eighteen bottles of beer from the appellant and paid him five dollars therefor; that the officers recovered a part of this beer from the purchaser and turned it over to a chemist to be analyzed, and the chemist who analyzed it testified that it contained more than five per cent of alcohol.

The offense charged in the indictment is denounced by Art. 667 of the 1925 P. C. Beer is a malt liquor. Bouvier's Law Dictionary, Vol. 1, page 334; Tolar v. State, 260 S.W. 1044. From the foregoing it follows that in our opinion the appellant's contention that the evidence is insufficient to support the verdict is without merit.

Appellant complains because the court instructed the jury as to the effect of the defendant's failure to testify in his own behalf. The criticism is not leveled at the form of the charge given, but the complaint is at the fact that the court charged on this issue at all. Many authorities will be found under Par. 4, Sec. 377, Branch's Ann. Texas P. C., holding that it is not error for the court to charge on the defendant's failure to testify.

Complaint is made with reference to the misconduct of the jury. Appellant contends that the jury discussed his failure to testify and also referred to the fact that he had once before been tried for violation of the liquor laws. The statement of facts heard on this motion for new trial is preserved in the record. We have carefully examined this statement of facts and have reached the conclusion that the court did not abuse his discretion in refusing a new trial. We think it clear from the testimony of the jurors that they did not discuss his failure to testify, but it was merely casually mentioned and the testimony of each juror negatives the idea that there was any discussion of the matter. The same is true with reference to a former trial of the appellant. The most that the testimony shows is that someone merely mentioned the fact that he had been tried before. The identical questions raised with reference to the misconduct of the jury were decided adversely to the appellant's contention in the case of Gutierrez v. State, 272 S.W. 780, and on the authority of that case and the case therein cited, appellant's complaint herein is overruled.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.