Abston v. State
| Decision Date | 28 June 1952 |
| Docket Number | No. 25936,25936 |
| Citation | 250 S.W.2d 214,157 Tex.Crim. 500 |
| Parties | ABSTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
E. A. Blair, Lubbock, for appellant.
Dudley Brummett, County Atty., Lubbock, George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is a conviction for unlawfully transporting whisky in a dry area; the punishment, a fine of $400 and three months in jail.
Peace officers were engaged in searching what is referred to as a 'travel bureau' in Lubbock County, a dry area. Appellant appeared and, seeing the officers, went to an automobile nearby, grabbed a sack therefrom, and fled. An officer pursued. The officer testified that he saw appellant throw one pint of whisky and also the sack containing another pint to the ground, thereby breaking both pints of whisky.
It was upon this testimony that appellant was convicted of transporting whisky in a dry area.
In the development of its case in chief, the state proved as original testimony that about seven weeks prior to the offense charged, appellant sold to a liquor control agent a pint of whisky in Lubbock County and that a week thereafter he sold another pint of whisky to the same agent at the same place.
To this testimony appellant objected as being irrelevant, immaterial, and inflammatory because it was proving another and extraneous offense. The bill of exception presenting this matter shows that the testimony as to the sales of whisky was admitted by the trial court upon the theory that it tended to show intent. The bill of exception certifies, and the statement of facts shows, that appellant did not testify and that he offered no defensive testimony upon the trial of the case.
The offense of transporting intoxicating liquor in a dry area is not made to depend upon any special purpose or intent. The transportation is unlawful of and within itself. There being no testimony raising the issue of intent, such defensive theory did not arise under the facts.
No rule of law is perhaps more firmly fixed than that which says that an accused is entitled to be tried for the offense against him, and that proof of other and extraneous offenses is admissible only when it tends to solve some issue arising in the case. Branch's P. C., Sec. 166; Couch v. State, Tex.Cr.App., 238 S.W.2d 198; Laird v. State, Tex.Cr.App., 242 S.W.2d 374.
As pointed out, the sole issue before the jury in this case was whether appellant transported the whisky as alleged. No...
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...S.W.2d 608; Davidson v. State, 161 Tex.Cr.R. 486, 278 S.W.2d 861; Gilmore v. State, 159 Tex.Cr.R. 121, 261 S.W.2d 854; Abston v. State, 157 Tex.Cr.R. 500, 250 S.W.2d 214; Carroll v. State, 156 Tex.Cr.R. 533, 244 S.W.2d 828; Morrison v. State, 155 Tex.Cr.R. 106, 230 S.W.2d 808; Dodd v. State......
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...Fourth, transporting an alcoholic beverage is made unlawful without regard to any special intent or purpose, Abston v. State, 157 Tex.Cr.R. 500, 250 S.W.2d 214 (1952), such as for the purpose of sale, Wright v. State, 168 Tex.Cr.R. 645, 330 S.W.2d 620 (1960); Gaines v. State, 157 Tex.Cr.R. ......
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Donahoo v. State, 26781
...in no way connected with the act of transporting the whisky found in the car which appellant had been seen to drive. See Abston v. State, Tex.Cr.App., 250 S.W.2d 214. In the absence of a charge limiting this testimony to the possession count, we are in no position to say that the jury did n......
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