Lindsey v. State

There is no merit in the renewed contention that the indictment was defective in not alleging that accused was in possession of more than a quart of intoxicating liquor for the purpose of sale, the contention being based on the theory that as the State expected to rely upon proof of possession of more than a quart the indictment should have so averred. As stated in our former opinion, the law makes the possession for sale of any quantity of intoxicating liquor an offense, and when the State alleges this it has charged a crime. Because the State expected to rely upon evidence showing possession of more than a quart under the provisions of Section 2e, 2d, C. S., 38 Leg., no more makes it necessary to so allege than it would be necessary to allege the evidence whereby the State expected to show that less than a quart was possessed for the purpose of sale. To uphold appellant's proposition would require the State to plead its evidence. The cases of Hewitt v. State, 25 Texas (Sup.Ct.) 722; Duke v. State, 42 Texas (Sup.Ct.) 445; Williams v. State, 12 Tex. Ct. App. 395, to which we are referred are not in point. Hewitt was prosecuted under a statute which provided that if a person should sell intoxicating liquors in quantities of less than a quart without having obtained a license therefor he would be guilty of a misdemeanor. The indictment failed to allege that he had not obtained the required license. The opinion in that case clearly states if there had been a general prohibition against selling liquors in quantities of less than a quart then to so allege would have charged an offense. The Legislature in the present instance has denounced as a crime the possession for sale of intoxicating liquor regardless of the amount and said Sec. 2e, only prescribes a rule of evidence which may or may not have application depending upon the facts of the particular case.

Appellant further asserts that Sec. 2e, Ch. 22, 2d C. S., 38th Leg., is inoperative because by Sec. B, of said Act, Sec. 2e, is declared to be an amendment of Secs. 1 and 2 of Ch. 61, 1st C. S., of the 37th Leg. when (as he claims) said Secs. 1 and 2 were repealed by the very act when undertook to add Sec. 2e. This contention cannot be sustained. Secs. 1 and 2 were first enacted by the 36th Leg. 2d C. S., Ch. 78. They were amended by the 37th Leg. 2d C. S., Ch. 61. The caption of the amendatory act of the 38th Leg., which added Sec, 2e, states the purpose of the act to be an amendment of Secs. 1 and 2 of Chapter 78 of the 2d C. S., 36th Leg., as amended by Ch. 61, 37 Leg., and further amendment thereof by adding said Sec. 2e. The act does not repeal Secs. 1 and 2, but amends them by re-writing both, and by adding thereto Sec. 2e.

Appellant complains of the disposition made of his bills of exceptions four and five, stating that an inspection of them would show that the forms of the questions were objected to, and therefore the questions and answers were set out in the bills. We think bill number four is not subject to this construction. The objection interposed to the evidence therein set out was because the defendant was under arrest when it was elicited. All the matters complained of in the bill seem to be based upon the first question set out wherein the attorney for the State asked appellant if before he was arrested he had told the officers certain things. There is no vice in this question. We can discern no necessity for placing the entire bill in question and answer form. There is no certificate by the court that it was necessary to do so in order for this court to understand the conditions existing at the time the exception was taken. Jetty v. State, 90 Tex. Crim. 846; 235 S.W. 589.

Most of the questions set out in bill number five appear to be leading, but the bill is not sufficiently explicit to advise us of the harmful character of the answers given in response thereto. In approving the bill the court says the evidence was in reply to a severe personal attack on the witness Lanier under cross-examination. Without a more comprehensive statement than we find in the bill we must conclude the ruling of the trial court was correct.

Believing proper disposition has been made of the case the motion for rehearing is overruled.

Overruled.