Riojas v. State

LATTIMORE, Judge.

From conviction in the District Court of Jim Wells County for transporting intoxicating liquor, with punishment fixed at one year in the penitentiary, this appeal is taken.

Appellant and his brother were in a car and passed a place where some officers were, the attention of the latter being attracted by the apparent contents of the car. A chase was undertaken and extended a mile and a half or two miles before the car was caught. Same was found to contain 131 bottles of tequila shown by the testimony to be intoxicating liquor. The first bill of exceptions was to the refusal of a peremptory instruction based on the proposition that there was a variance between the allegation and the proof in that it was alleged that appellant transported spirituous, vinous and intoxicating liquor capable of producing intoxication, and that the proof only showed that the liquor was capable of producing intoxication and that it was not shown that same was spirituous or vinous. The complaint is without merit. Travinio v. State, 92 Tex. Crim. Rep. 140.

The complaint that the officers searching the car found two pistols and were allowed to testify to this fact, is not sound. What was found in the car was part of the res gestae of the transaction and was admissible; nor do we think it erroneous for the court to refuse to charge the jury that they should not consider any testimony showing that the pistols were in the car. While the unlawful transportation of liquor is itself a felony, the State would not be denied the right to prove, as persuasive of the unlawful character of the enterprise, that the parties had in the car weapons.

Finding no error in the record, the judgment will be affirmed.

Affirmed.