Klein v. State , 102 Tex. Crim. 256 ( 1925 )

Conviction is for possessing intoxicating liquor for the purpose of sale. Punishment is one year in the penitentiary.

The judgment charged the possession of spirituous, vinous and malt liquor. The point was made by motion to quash that the indictment did not designate the kind of liquor, and therefore failed to put accused on notice of the particular charge against him. This contention has been settled against appellant. Trevino v. State, 92 Tex.Crim. R., 242 S.W. 242; Mayabb v. State, Tex. Cr. R. 25 S.W. 189; Donaldson v. State, Tex. Cr. R. 260, S.W. 185; DeLaney v. State, Tex. Cr. R. 263, S.W. 1065.

Appellant complains in bills two and three that the court would not permit him to prove by two witnesses that appellant's wife was a frail, delicate, weak and sickly woman. This evidence appears to have been excluded, when offered as being wholly immaterial to any issue then appearing in the case. The court's explanation to the bills shows that when appellant's wife testified she claimed he had made some of the liquor for her to use as medicine. She was permitted to testify as to her physical condition; that when the issue of having the liquor for medicinal purposes thus came into the case the court advised appellant's attorney that he would admit the evidence which had been theretofore excluded, and appellant declined to avail himself of the opportunity thus afforded. As explained the bills show no error.

The evidence shows that officers armed with a warrant searched appellant's premises, finding in his residence a quantity of "home-brew" and buried in his garage eleven gallons of whiskey in jugs. After reading the search warrant to appellant the sheriff told him to remain with another officer outside the house. After the sheriff went into the house appellant insisted on also going in, resisted the efforts of the officer to keep him out, used profane language and called to his wife and others to bring him his gun. Under the facts no error occurred in admitting proof of his conduct. Mitchell v. State, 52 Tex.Crim. R., 106 S.W. 124; Moreno v. State,160 S.W. 361; Walker v. State, 169 S.W. 1156.

Bill number one complains because the State exhibited before the jury and introduced in evidence the eleven gallons of whiskey contained in the jugs found in the garage. It had been identified as the liquor found there, and was properly received in evidence.

Finding no error in the record the judgment is affirmed.

Affirmed.