Martin v. State , 109 Tex. Crim. 101 ( 1927 )

Appellant was convicted of the unlawful possession of intoxicating liquor for the purpose of sale and his punishment assessed at confinement in the penitentiary for a term of one year.

It appears that the appellant pleaded guilty in the trial court. That evidence of a search revealing a quantity of intoxicating liquor was introduced against him as well also as his extra-judicial confession. The appellant himself took the witness stand in the trial of his case and admitted that he was in possession of the intoxicating liquor and that he had sold about a half gallon of it. His own testimony in the court below clearly shows his guilt.

Appellant questions the sufficiency of the evidence. It is well settled that a verdict of guilty cannot be attacked for the insufficiency of the evidence where the defendant has pleaded guilty, such plea admitting all incriminating facts. Gipson v. State, 86 Tex.Crim. Rep.; Doans v. State,36 Tex. Crim. 468. Evidence is admitted only to determine the penalty. Gipson v. State, (supra). The appellant having received the lowest penalty under a plea of guilty, this case could not be reversed for lack of sufficient evidence. Terreto v. State, 86 Tex.Crim. Rep.; Coats v. State, 86 Tex. Crim. 234.

The contention is made that there is no corroboration of appellant's confession. This rule apples only to an extra-judicial confession and the rule invoked would not apply to the facts of the instant case.

No objections were made during the trial either to the court's charge or to the reception of evidence. On motion for a new trial such objections were raised for the first time, Art. 666, C. C. P., provides: "All objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial." This same article also provides in substance that a judgment shall not be reversed unless the errors in the court's charge were calculated to injure the rights of the defendant. The indictment charges that appellant "did then and there unlawfully possess for the purpose of sale spirituous, vinous, and malt liquors capable of producing intoxication." The court in his main charge states that the appellant "stands charged by indictment in this case for the offense of unlawful possession of intoxicating liquor for the purpose of sale." The main attack against the charge is based upon the use of the above language by the court, appellant claiming that there is no such offense as that stated and that it is another and different offense from that charged in the indictment. As before stated, no objection was made to this charge at the time of the trial. The charging part of the indictment quoted above and the language of the court are somewhat different but we are not able to perceive how any injury could have resulted to appellant. This was undoubtedly not fundamental error as will appear from the case of Hays v. State, 95 Tex.Crim. Rep.. It was there held that the charge of the court in a case of the theft of an automobile which authorized a conviction upon the unlawful taking instead of the fraudulent taking was not fundamentally erroneous and that in the absence of a timely objection the use of the words "unlawfully taken" instead of "fradulently taken" constituted no error. A fradulent taking is an essential element of theft under its definition notwithstanding which the court held that its omission in the absence of an objection in the trial court constituted no reversible error. We discuss this only because appellant insists same constitutes fundamental error.

Further complaints of the court's charge on the admission of evidence were made in the motion for new trial but for the reason that no objection was made at the time of the trial, these cannot be considered. See notes under Art. 666, Vernon's C. C. P., pp. 337-338.

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.