Lane v. State , 111 Tex. Crim. 367 ( 1928 )

The two counts in the indictment are based upon a single transaction, namely, that which revealed the presence of whisky in the car in which the appellant was driving upon the public road. It was competent for the State to introduce evidence supporting either count or both counts, leaving the jury under the charge to select the count, if any, upon which they would find the accused guilty. Under the count charging the possession for the purpose of sale, proof by direct or circumstantial evidence that the accused, upon other occasions not too remote, had engaged in making unlawful sales of liquor was competent and relevant upon the issue of intent or purpose for which he possessed the liquor. The memoranda found in his possession at the time of his arrest was admissible as a circumstance tending to show that he was a dealer in intoxicants. The complaint of the court's failure to limit the testimony last mentioned by an instruction in his charge comes too late after verdict. To be available an omission in the charge must be called to the attention of the trial court in a proper manner before the charge is read to the jury. See Arts. 658, 659, and 660, C. C. P., also Banks v. State, 104 Tex.Crim. Rep.; Overley v. State, 104 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.