Spencer v. State , 1951 Tex. Crim. App. LEXIS 2010 ( 1951 )

237 S.W.2d 990 (1951)

SPENCER
v.
STATE.

No. 25130.

Court of Criminal Appeals of Texas.

January 31, 1951. Rehearing Denied April 11, 1951.

No attorney on appeal.

George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is the possessing of an alcoholic beverage for the purpose of sale in a dry area; the punishment, a $100.00 fine and confinement in the county jail for ninety days.

Liquor Control officers searched appellant's garage, with appellant's consent, and found five cases of beer.

Appellant, while testifying, admitted ownership but claimed that he had the same on hand in order to treat prospective customers on the opening day of his garage.

Bills of Exception Nos. 1 and 2 may be treated together, since they raise, fundamentally, the same question.

The complaint and information charged the primary offense and a prior conviction for a similar offense.

Upon the trial, the State having failed to make sufficient proof of the prior conviction, the same was withdrawn from the jury's consideration, and the jury was instructed as to punishment for a first offender.

Appellant complains of the trial court's failure to declare a mistrial at the time of the discovery of the insufficiency of the State's evidence as to the prior conviction.

The trial court sustained the appellant's objection to the testimony and withdrew the same from the jury's consideration, together with the count in the information upon which such testimony was predicated.

Absent a showing of bad faith on the part of the State in offering evidence in support of such count relating to the prior conviction, this Court would not feel called upon to reverse a conviction merely because the State failed to make out its case as to said count.

Finding no error, the judgment is affirmed.