Cox v. State , 107 Tex. Crim. 19 ( 1926 )

The appellant was convicted in the District Court of Shelby County for unlawfully transporting intoxicating liquor, and his punishment assessed at two years in the penitentiary.

This is the second appeal of this case; appellant was indicted on the 25th day of February, 1924, the indictment charging the unlawful transportation of intoxicating liquor on or about November 15, 1923. The trial in the instant case was on the 22d day of February, 1926. For statement of facts, reference is here made to the opinion in this case on the former appeal in 279 S.W. 838.

Appellant complains in his bill of exceptions No. 1 of the action of the trial court in overruling his motion to quash the indictment in this case for the reason that said indictment failed to allege that the appellant "knowingly" transported the liquor. From a careful reading of the statute as originally passed it will be observed that the word "knowingly" was conspicuous by its absence, and since the appellant was indicted the P. C. of 1925 has been enacted with the word "knowingly" inserted.

The P. C. of 1925 reads as follows:

"It shall be unlawful for any person directly or indirectly to * * * transport spirituous, vinous or malt liquor * * * or knowingly sell, barter, exchange any equipment, still, mash, etc."

It therefore follows that the appellant not being charged with transporting any equipment, still, mash, etc., and only charged with transporting intoxicating liquor, that it is not necessary to allege in the indictment that he knowingly transported said intoxicating liquor, that it is not necessary to allege in the indictment that he knowingly transported said intoxicating liquor. (Acts 1919, Second Called Session, Chap. 78, Secs. 1 and 2.) Vernon's Ann. P. C., Art. 666. For the reasons above stated we hold that the learned trial judge properly overruled appellant's motion to quash.

We fail to agree with appellant's contention as set out in bills of exceptions Nos. 2 and 3, for the reason that the matters complained of were the result of appellant's cross-examination of the witness.

Appellant complains at the action of the court in his bill of exceptions No. 4 in not allowing him to cross-examine the witness, Dr. Sam Yearey. We have examined the bill of exceptions carefully, as well as the evidence of the witness, Dr. Yearey, and hold that the same presents no error.

The errors complained of in bills of exceptions Nos. 5, 6, 8, 9, 10, 13, 15 and 16 were passed on by this court adversely to the appellant in the former opinion by Judge Baker. See279 S.W. 838.

Appellant's bill of exceptions No. 11 complains of the argument of the County Attorney, who was assisting with the prosecution. In the light of all the testimony in this case, we do not agree with the contention of the appellant.

Bill of exceptions No. 19, in which complaint is made that the statement of facts on pages 5 and 6 giving the testimony of the witness, Dr. Yearey, is incorrect, presents no error for the reason that the statement of facts was agreed to and signed by counsel for the appellant as a complete and impartial statement of the facts proven upon the trial of said cause.

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.