Fields v. State , 153 Tex. Crim. 139 ( 1949 )

HAWKINS, Presiding Judge.

Conviction is for the transportation of intoxicating liquor in dry area, punishment assessed being a fine of $500.00 and 30 days in the county jail.

The record contains no notice of appeal as is required by Art. 827 C. C. P.

The appeal is dismissed.

ON APPELLANT’S MOTION TO REINSTATE APPEAL.

BEAUCHAMP, Judge.

Appellant has filed herein supplemental transcript correcting the record, which failed to contain a notice of appeal entered of record. Accordingly, his motion to reinstate the appeal is granted.

We are asked to reverse the case on the ground that the complaint was not sworn to or certified by any person. The record does not sustain this contention.

The other ground presents the contention that there is a variance between the complaint and information. The complaint, signed and sworn to by J. T. Morgan, on the 7th day of May, 1948, charges the unlawful transportation of “whisky and wine.” The information filed by the district attorney contains two counts, one charging transportation of an alcoholic beverage, “to-wit: Forty-Eight (48) Four-Fifths quarts of wine.” The second count sets out that appellant did unlawfully transport “an alcoholic beverage * * * to-wit, Twenty-Four (24) pints of whiskey.” Together the two counts in the information describe the same thing that is alleged in the complaint. In addition, the exact amounts are specified and it is further stated that it was on “State Highway No. 180,” in Borden County, whereas the complaint only states that It was in Borden County.

The pleading is awkward and subject to criticism, but we are unable to find a conflict. We do not think there is authority for sustaining appellant’s contention in this respect.

The court’s charge further confuses the issues but no complaint was lodged against it and consequently, that matter is not before us for consideration.

The case is now considered on its merits and the judgment of the trial court is affirmed.