Guynes v. State ( 1924 )

MORROW, P. J.

Tbe offense is tbe unlawful transportation of intoxicating liquor; punishment fixed at confinement in tbe penitentiary for a period of one year.

[1, 2] Tbe indictment filed on tbe 17th day of March, 1922, charged that the offense was committed on or about tbe 25th day of February, 1921, and anterior to tbe presentment of tbe indictment. Tbe proof fixed tbe date of tbe transaction in tbe month of March, 1922, prior to tbe 16th of that month. In February, 1921, tbe law required an indictment charging this offense to contain an averment to tbe effect that tbe transportation was not for medicinal, mechanical, scientific, or sacramental purposes. Reeves v. State, 88 Tex. Cr. R. 444, 227 S. W. 668; Guynes v. State, 92 Tex. Cr. R. 71, 242 S. W. 233; Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89; O’Neal v. State, 92 Tex. Cr. R. 91, 242 S. W. 238. In March, 1922, owing to a change in tbe statute, such an averment was not required. Acts 37th Leg. 1st Called Sess. (1921) p. 233 (Yernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.); Davidson v. State, 93 Tex. Cr. R. 294, 248 S. W. 383. Tbe date in tbe indictment upon, which it is charged that tbe offense took place is not binding upon tbe state. White v. State, 86 Tex. Cr. R. 421, 217 S. W. 389; Dixon v. State, 86 Tex. Cr. R. 406, 216 S. W. 1097. Proof in tbe present case showing that the offense ,took place anterior to'tbe time tbe indictment was filed and within the period of limitation and at a time when tbe law did not require that the indictment contain an averment negativing tbe exceptions, tbe verdict was warranted, and tbe misstatement of tbe date of tbe offense did not vitiate the' indictment. Tbe case of Davidson v. State, 93 Tex. Cr. R. 294, 248 S. W. 384, is distinguishable in that tbe offense was committed before tbe law was changed by tbe Acts of tbe 37th. Legislature, supra.

[3] Tbe only defensive theory presented was that of alibi. This tbe court submitted in a special charge requested by the appellant. Tbe evidence of the state was sufficient to show circumstantially that the appellant, while in the town of Shamrock, borrowed an automobile from tbe witness Baker which contained no whisky; that appellant alone drove away in the ear and later returned to tbe town and went to the wagon yard and took out of tbe car two tow sacks which appellant admitted to Baker contained whisky and which were deposited by tbe appellant in tbe wagon yard and afterwards seized by tbe officer and found to contain eight quarts of whisky.

Finding no error in tbe judgment, an af-firmance is ordered.