Anderson v. State, 22508.
| Decision Date | 19 May 1943 |
| Docket Number | No. 22508.,22508. |
| Citation | 172 S.W.2d 310 |
| Parties | ANDERSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Travis County Court at Law; Chas. O. Betts, Judge.
Goldie Anderson was convicted of having in her possession liquor for the purpose of sale in a wet area without first obtaining a permit to sell the liquor, and she appeals.
Judgment affirmed.
Horace H. Shelton, of Austin, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
Appellant was assessed a jail sentence of forty-five days on a charge of having in her possession liquor for the purpose of sale in a wet area without first obtaining a permit to sell the same.
The house at which this woman lived in Austin was the scene of the search by representatives of the Texas Liquor Control Board on the night of September 13, 1942, which resulted in the finding of more than forty pints of liquor concealed in and at various places in and under the house. The evidence indicates that she was running a public place which was frequented by soldiers who danced with girls who would come there for that purpose, and that they placed in a nickelodeon money for the music from which she derived $50 to $53 a week.
A negro girl, who spent two or three nights a week in this five-room cottage with her boy friend, testified in her behalf and together the sum of their story is that it was a "gay corner" during 1942, at which the soldier boys had been exceedingly nice to the proprietress, and in return she had decided to give them a party on this particular occasion at which she was going to feed chickens free to her soldier friends, which meal was to be garnished with cocktails sufficient for all comers. (No charge for this either). In order that there would be no embarrassment, the small quantity of liquor found in her larder was to be supplemented, if needed, by about forty pints and half pints (no quarts), and securely hid away among empty beer bottles under the floor, entered by a door that was padlocked, and "somebody else" had the key when the officers came. Anyway, this ideal situation, ready for operation, was prematurely raided at midnight, and the "southern hospitality" was wasted, though good intentions did abound. The evidence fails to show when supper was to be served. The officers took the wherewithal and were unkind enough to bring it to the court room and there, in the presence of the jury, to the embarrassment of the accused, they analyzed some of the contents and found that it contained forty-four per cent and more of alcohol. This was prejudicial, it was claimed, and so it was. The short imprisonment given by the jury indicates a sympathetic heart but a clear conscience, for it appears that they followed the court's instructions and the overwhelming evidence in the case.
This appeal comes to us ably and seriously presented, but we think the State's contention to more nearly comport with our idea of the law on the facts of the case, which the jury found to be correct.
By Bill of Exception No. 1 the appellant complains of the action of the trial court in overruling her motion to quash the information and complaint on the ground that no offense is charged, and particularly because the complaint and information merely charge her with having possession, for the purpose of sale, of "liquor" and do not state "intoxicating liquor" or "whisky", nor does the complaint define the alcoholic contents of the liquor. This is unnecessary under Article 666—3a, Vernon's Ann.Penal Code, which defines "liquor" as meaning any alcoholic beverage containing alcohol in excess of 4% by weight unless otherwise indicated. Lamantia v. State, 133 Tex.Cr.R. 573, 113 S. W.2d 186.
By Bill of Exception No. 2 appellant complains of the refusal of the trial court to sustain a motion to quash the search warrant because the search warrant merely alleged the possession by appellant of "liquor" and not "intoxicating liquor". It does not appear that any objection was made to the introduction of the evidence obtained as a result of the search warrant. A motion to quash the search warrant is not the proper method of reaching an invalid search warrant. Cothran v. State, Tex.Cr.App., 159 S.W.2d 876.
By Bill of Exception No. 3 appellant complains because the trial court allowed the State chemist, Mr. Crisp, to use an "ebulio-meter" before the jury to test the alcoholic content of the liquor. The court, in his qualification, states that Mr. Crisp was testifying to the result of his test and objection was made by appellant to such testimony on the ground that the test was made out of the presence of the appellant. It was then that the machine was brought in and the test made over the appellant's objection.
By Bill of Exception No. 5 appellant complains of the action of the trial court in refusing to instruct the jury that the proof of possession of liquor is not sufficient to convict, urging that the State must show, beyond a reasonable doubt, that there was a sale by the defendant. This charge would have been improper. The court's charge sufficiently covered this matter. A sale was proven.
The judgment of the trial court is affirmed.
On Motion for Rehearing.
Appellant has filed a motion herein in which the contention is made that it is not a violation of the law to possess liquor for the purpose of sale in a wet area in this State without having a permit to do so, and we are cited to Art. 666—15 Vernon's Ann.P.C., where permits are classified and license taxes fixed therefor, and therein is not found a classification and license charge for a permit to possess liquor for the purpose of sale in a wet area.
The statute under which this prosecution was based, Art. 666—4(a), Vernon's Ann....
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