Brodus v. State , 121 Tex. Crim. 156 ( 1932 )

As requested in appellant's motion for rehearing, we have again examined the statement of facts. We cannot agree with counsel that the evidence is insufficient. In our original opinion we attributed to appellant the statement that a certain trail used by the school children "was used by them and no oneelse." It should have read "was used by them and everybody else."

By motion in arrest of judgment appellant attacked the law under which the conviction was had as being unconstitutional for permitting a greater penalty than fixed in the Volstead Act (27 U.S.C.A.), for similar violations of that law. Ex parte Gilmore, 88 Tex.Crim. Rep., 228 S.W. 199, this identical question was raised and decided adversely to appellant soon after the present prohibition law became effective. See, also, Goforth v. State, 99 Tex. Crim. 211,

269 S.W. 98. The Supreme Court of the United States decided the same question against appellant in Chandler v. State of Texas, reported in 260 U.S. 708, 43 St. Ct., 247, 67 Law Ed., 474; Vigliotti v. Pennsylvania, 258 U.S. 403, 42 S.Ct., 330, 66 Law Ed., 686; United States v. Lanza, 260 U.S. 377, 43 St. Ct., 141, 67 Law Ed., 314.

The motion for rehearing is overruled.

Overruled.