Skinner v. State , 144 Tex. Crim. 21 ( 1942 )

The conviction is for the offense of selling whisky in a dry area. The punishment assessed is confinement in the county jail for a period of twenty-five days.

It is charged in the complaint and information that on or about the 4th day of March, 1941, the appellant, Bill Skinner, did then and there unlawfully sell in Upshur County, Texas, to J. C. Howerton, an alcoholic beverage containing alcohol in excess of four per cent by weight, to-wit, whisky. It was further charged that Upshur County was a dry area.

Appellant challenges the sufficiency of the evidence to support the conviction on the theory that it was charged in the information that he sold an alcoholic beverage containing alcohol in excess of four per cent by weight, to-wit, whisky. He contends that since the State particularly described the alcoholic beverage as containing alcohol in excess of four per cent, it was required to meet the particular description thereof by proof. We agree that as an abstract legal proposition this is ordinarily true. However, in order to determine the question presented, we deem it proper to examine the evidence in connection with Section 3a of Article 666, P. C.

The evidence adduced upon the trial shows that on or about the 4th day of March, 1941, J. C. Howerton went to the appellant's place of business, located in Upshur County, and purchased from him two half-pints of "Schenley's Red Label Whiskey." The containers bearing these labels, together with the contents, were offered in evidence. Appellant took the witness stand and denied that he was at his place of business at the time in question or that he sold any whisky to Howerton.

While Section 3a of Article 666, P. C., defines an "alcoholic beverage" as "any beverage containing more than one-half of one per cent of alcohol by volume," etc., the article also defines "liquor" as "any alcoholic beverage containing alcohol in excess of four (4) per centum by weight, unless otherwise indicated." "Proof that an alcoholic beverage is alcohol, spirits of wine, whiskey * * * shall be prima facie evidence that the same is liquor as herein defined." Liquor is therein defined as any alcoholic beverage containing alcohol in excess of four per cent by weight. However, since we judicially know that whisky is an alcoholic beverage, and since proof of an alcoholic beverage shall be prima facie evidence that the same is liquor as therein defined, it necessarily follows that it contained alcohol in excess of four per cent by volume. When appellant sold the liquor with the labels thereon as aforesaid, he represented that the bottles contained whisky. Hence we deem the evidence sufficient.

By Bills of Exception Nos. 1 and 4 appellant complains of the court's action in overruling his application for a continuance based on the absence of the witness, Bennie Beene. The application is wholly deficient in that it fails to show that appellant ever applied to the clerk of the court for a subpoena for said witness; nor is it stated in the application what facts he expected to prove and would have proven by said witness, if present. In fact, it does not comply with the requirements of Article 543, C. C. P.

It appears from Bill of Exception No. 2 that the court, in calling the docket for the purpose of ascertaining in which cases the State and the defendant were ready for trial, called four cases pending against the appellant, at the conclusion of which appellant moved for a continuance based upon the ground that the court had informed the prospective jurors who were present in court at the time that there were four other charges of liquor law violations pending against appellant, which was prejudicial. This bill is deficient in that it fails to allege that it was not necessary to call the cases for the purpose of ascertaining in which of said cases the State and the defendant were ready for trial. If the State or the defendant was not ready for trial in either of the three preceding cases, then, of course, it was proper for the court to call the fourth case. The mere calling of the cases and sounding the docket did not inform the prospective jurors that in each case the appellant was charged with the violation of the liquor law. Hence the bill fails to reflect error.

The matter complained of in Bill of Exception No. 5 has been in effect disposed of by us in holding the evidence sufficient to sustain the conviction. See Ferguson v. State, 110 S.W.2d 61; Dozier v. State, No. 21845, not yet reported. (143 Texas Crim. Rep., page 397).

By Bill of Exception No. 6 appellant complains of certain argument made by the County Attorney but no ground of objection is stated in the bill. He merely said, "I object." This is insufficient to show any error. See Simms v. State, 67 Tex. Crim. 98; Bird v. State, 147 S.W.2d 500, and cases cited; also Fisher v. State, 108 Tex.Crim. R.. If the argument was based on any evidence admitted, or if the same was a reasonable deduction therefrom, it was not improper. Therefore, this bill fails to reflect error.

All other bills of exception appear to us to be without merit and we do not deem it necessary to enter upon an extended discussion thereof.

Finding no error in the record, the judgment of the trial court is 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.