Etheredge v. State

The appellant was convicted of unlawfully selling malt liquors containing in excess of one per cent alcohol by volume, and his punishment assessed at one year in the penitentiary.

There are no bills of exception in the record, and the only question raised is the sufficiency of the evidence to sustain the verdict. The record discloses that the appellant sold to the state's witnesses Lawson and Taylor about six bottles filled with what the state contended was malt liquor, and that said witnesses immediately delivered these bottles to W. P. McConnell, a constable, who then delivered all or most of said bottles to Sheriff Lowe, who, in turn delivered one of the bottles to Dr. J. C. Godbey, a chemist. The witness Godbey testified that he analyzed the contents of the bottle delivered to him, and that said bottle was filled with malt liquor which contained 11.70 per cent alcohol. The appellant introduced no testimony, but relied for an acquittal upon the insufficiency of the state's testimony and insists that the testimony introduced by the state fails to show that the bottle concerning which the witness Godbey testified was one of the bottles alleged to have been sold by appellant to the witnesses Lawson and Taylor. After a careful examination of all the testimony adduced upon the trial, we are not in accord with this contention and are of the opinion that the state's evidence clearly shows that the liquid analyzed by the witness Godbey came from one of the six bottles sold by appellant to the state's witnesses Lawson and Taylor. We think, further, that the evidence of the state is amply sufficient to warrant the verdict of the jury herein.

The appellant cites Henson v. State, 280 S.W. 592, as authority for the proposition that the facts in the instant case are insufficient to support the verdict of the jury. In the Henson case the appellant was charged with possessing for sale spirituous, vinous and malt liquors containing in excess of 1 per cent alcohol by volume, while the evidence developed that Henson was found in possession of "choc beer" and there was no evidence showing that said "choc beer" was either spirituous, vinous, or malt liquor. It was therefore held that the evidence was insufficient to support the allegations in the indictment. In the instant case the appellant was charged, under Art. 667, P. C., with selling malt liquor containing in excess of 1 per cent alcohol by volume, and the state proved that the article sold was malt liquor containing 11.70 per cent alcohol by volume. It therefore follows that in the instant case the evidence supports the allegations in the indictment and is therefore sufficient.

After a careful examination of the record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.