Buckhannan v. State

Appellant was convicted in the District Court of Morris County of a conspiracy to commit a felony, and his punishment fixed at two years in the penitentiary.

There is but one bill of exceptions in the record which contends that the indictment was insufficient for not alleging that appellant and his co-conspirators did not have a legal permit authorizing them to manufacture intoxicating liquor. We deem the contention without merit, and have held that if one manufactures intoxicating liquor for one of the excepted purposes, the fact that he has no permit does not penalize him. Burciago v. State, 88 Tex.Crim. Rep.; White v. State,93 Tex. Crim. 332, 247 S.W. Rep. 557. Nor do we think it a sound proposition that the indictment charged no offense because at the time of the enactment of the statute making it a conspiracy to commit a felony, punishable by law, there was no such felony offense in this State as the unlawful manufacture of intoxicating liquor. In our opinion it was the intention of the Legislature in the enactment of the conspiracy statute to include within its prohibition a conspiracy to commit any felony which might thereafter be made such by the legislature.

There seems no question of the purpose of appellant to unlawfully manufacture intoxicating liquor. The State's case shows beyond question that he and others were engaged in preparation for such manufacture, carried to the point of putting in place and getting ready the instruments and machinery for same. Appellant testified admitting his own preparation for such manufacture and purpose so to engage, but denying participation therein by an other person. The evidence offered on behalf of the State justified the conclusion of the jury that other persons were so engaged with him in such preparation and their further conclusion of a conspiracy to perform the act made a felony by the statute.

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

Affirmed.

ON REHEARING. June 20, 1923.