Ferguson v. State

Conviction is for possessing for the purpose of sale in "dry area" intoxicating liquor, to-wit: whisky; punishment assessed at a fine of $100.00.

In appropriate language it was alleged in the complaint and information that an election had been held in Madison County in December, 1904, which resulted in prohibiting the sale of intoxicating liquor in said county.

Appellant moved to quash the complaint and information because it was not alleged that the local option election mentioned was to determine whether the possession of intoxicating liquor for sale should be prohibited. Appellant has not favored us with a brief and we can only appraise his position from the motion, but it does not occur to us that there is any merit in the contention. The status of "dry area" was fixed by the Constitutional Amendment adopted in August, 1935, amending Art. XVI. The 44th Legislature, 2d C. S., Ch. 467, in enacting the "Texas Liquor Control Act" was making effective said amendment. So far as the offense here charged was concerned the Legislature provided that in territory where the sale of intoxicating liquor had been prohibited it should be unlawful to possess it for the purpose of sale. The question is somewhat analagous to that discussed in Ex parte Gilmore,88 Tex. Crim. 529, 228 S.W. 199.

Officers having a warrant of arrest for appellant on a charge of selling intoxicating liquor went to appellant's place of business to execute the warrant and there found various brands of whisky in pint and half-pint bottles, amounting in all to thirty-six bottles.

Appellant objected to the order of the Commissioners Court declaring the result of the local option election alleged in the complaint and information for the reason that the possession of intoxicating liquor for the purpose of sale was not prohibited. This was the same question raised by motion to quash the State's pleading. The objection was properly overruled.

Appellant objected to the testimony of the officer as to finding the whisky on the ground that the officer had no search warrant and that the evidence was illegally obtained. There is no merit in the objection. The officers had a warrant for appellant's arrest, and the arrest being legal the search was likewise legal. Furthermore, the officer testified without contradiction that appellant consented to the search.

By bill of exception number four appellant complained of the introduction of the bottles and the liquid therein and the revenue stamps and state stamps on the bottles, and the names of the whisky as shown on the labels and stamps. The particular evidence to which objection was made is not further pointed out, but we are referred to the evidence as found on pages 11, 12 and 13 of the statement of facts. Much of the evidence was unquestionably admissible, and the bill seems to be subject to the vice that where part of the evidence objected to is admissible and part may not be, the bill is defective. See Sec. 212, 4 Tex. Jur., p. 305, and cases there cited. However, if the bill is not defective in the particular mentioned we think the evidence not subject to the objections urged. The labels, stamps, etc., on the bottles were not placed there by the officers making the arrest, but were on the bottles found in appellant's possession. He was charged with knowledge of what was on the bottles and it was descriptive of the articles so found.

The judgment is affirmed.

ON MOTION FOR REHEARING.