Austin v. State, 20951.

• Decision Date: 16 October 1940
• Docket Number: No. 20951.,20951.
• Citation: 146 S.W.2d 990
• Parties: AUSTIN v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W.2d 990

AUSTIN v. STATE.

No. 20951.

Court of Criminal Appeals of Texas.

October 16, 1940.

Rehearing Denied January 29, 1941.

Appeal from Brown County Court; A. E. Nabors, Judge.

J. M. Austin was convicted of the possession of an illicit beverage, and he appeals.

Affirmed.

McCartney, McCartney & Johnson, of Brownwood, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

The original opinion herein handed down April 17, 1940, is withdrawn and the following substituted therefor:

Appellant was convicted of the possession of an illicit beverage, to wit, liquor to which container there was not affixed a stamp showing that the tax due the State thereon had been paid.

The statute evidencing the criminality of such act under the law is found in the Acts of 1935, 2d Called Sess., c. 467, Sec. 43 of what is termed Art. 666 of the Penal Code, Vernon's Annotated. We find, however, that such section of Art. 666 was repealed by the passage of H. B. No. 5, Chapter 448, of the Acts of the Regular Session of the 45th Legislature, 1937, and in order to find a denunciation of the possession of unstamped liquor we are relegated to the definition of an "illicit beverage" in the following terms: "`Illicit Beverage' shall mean and refer to any alcoholic beverage manufactured, distributed, bought, sold, bottled, rectified, blended, treated, fortified, mixed, processed, warehoused, stored, possessed, imported, or transported in violation of this Act, or on which any tax imposed by the laws of this State has not been paid and the tax stamp affixed thereto," same being found in Section 3-a of such act, Vernon's Ann.P.C. art. 666—3a.

We then find in Section 41 of such act Vernon's Ann.P.C. art. 666—41, the punitory clause relative to the possession of such illicit beverage.

Under the facts of this case we think the jury were warranted in failing to give credence to the appellant's defense offered relative to the loss of the stamps on these bottles of whisky after they were said to have been purchased by him, especially in view of his conduct at the time the officers searched his place of business.

Appellant cites us to the Hays v. State case, 132 Tex.Cr.R. 165, 103 S.W.2d 374, which is a case strikingly in point in both facts and law, and from an observation of the court's special charge No. 1, it was evidently followed by this trial court. We do observe, however, that such charge, which was thought to be necessary in the Hays case, supra, and which was given in this cause also, was based on Sec. 43 of the liquor laws of 1935, and we further observe that under such an interpretation thereof the legislature, at the ensuing session, saw fit to repeal Section 43 in its entirety, thus relegating this alleged violation to Section 3-a of the 1937 act.

It is contended by appellant, and rightly so, we think, that the repeal of Section 43, and the slight change in Sections 3-a, as first quoted herein, evidenced a tendency of the legislature to relax the provisions of the law to some extent so that the evidence of a single payment of the tax and the affixing of a tax stamp would satisfy the requirements of the statute.

Complaint is also made of certain remarks of the county attorney in his address to the jury. Without setting forth such remarks, we are of the opinion that if error there was, which we do not say, the prompt instruction of the court to the jury to disregard the same rendered such error, if any, harmless. Such remarks thus complained of were mainly matters of common knowledge, and partly matters of statutory enactment, and could not have seriously affected a jury, especially in view of the court's prompt instruction.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that his bill of exception No. 4 presents error for which the judgment should be reversed.

Said bill complains of a portion of the testimony given by the witness Pelphrey who was an inspector for the Liquor Control Board of the State of Texas. In order to properly appraise the bill in question it is necessary to state that the three bottles of whisky found in appellant's possession did not have upon them the stamp tax evidencing payment of the tax due the State. It was appellant's contention that said stamps were on the bottles when he bought them and he did not know how they were removed. Mr. Smith, a deputy constable, was with Mr. Pelphrey when they took from appellant the bottles in question. Mr. Smith was the first State's witness who testified on direct examination regarding the stamps only to the fact that the stamps on the three bottles seemed to have been mutilated. On cross-examination counsel for appellant elicited from Mr. Smith the following evidence: "The little stamps on the bottles seem to be stuck on. The stamps do not rub off in ordinary use. I am quite sure of that. The stamps appear to be somewhat defaced on all three of the bottles; destroyed. There has been something stuck on the bottles, but I do not know what it is. There has been something stuck on, but I do not know when it was taken off. I do not know whether or not the tax was ever paid on that whisky. I have no way of knowing."

On direct examination Mr. Pelphrey testified regarding the stamps only as follows: "I have examined these bottles. I have not found any tax stamps on them in payment to the State * * *. There is no tax...