Cavelleto v. State

LATTIMORE, J.

Appellant was convicted in the district, court of Palo Pinto county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The sufficiency of the indictment herein has been passed upon by us in the case of Kitrell Tucker v. State (No. 7575) 94 Tex. Cr. R. 505, 251 S. W. 1090, opinion this day handed down on motion for rehearing. The indictment in this case and in the Tucker Case are similar in form. We do not discuss the sufficiency of the indictment further than to refer to the Tucker Case.

There appears a bill of exceptions in this record to the refusal of the trial court to permit appellant’s wife to testify that she was taking the liquor in question home with her to drink in order to increase the flow of milk for her baby; that she had been told by a doctor that the drinking of said liquor would so increase her milk. We do not think such testimony could have any legitimate effect in bringing the transportation of the liquor in question within any of the exceptions laid down in our .statute or the Constitution, and that the rejection of the testimony was not error.

There was testimony pro and con as to the intoxicating quality of the liquor which appellant had in his car and for the unlawful transportation of which this conviction was had. Such conflicts in the testimony have been resolved against him by the jury. That appellant transported three dozen bottles of choc beer on a public highway in Palo Pinto county, Tex.,- seems without dispute in the record.

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