Brown v. State

• Decision Date: 13 May 1925
• Docket Number: (No. 9066.)
• Citation: 276 S.W. 438
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 438

BROWN v. STATE.

(No. 9066.)

Court of Criminal Appeals of Texas.

May 13, 1925.

Rehearing Denied October 28, 1925.

Commissioners' Decision.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

R. B. Brown was convicted of transporting whisky, and he appeals. Affirmed.

A. L. Shaw, of Beaumont, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

The appellant was charged by indictment in several counts, but the court in his charge limited the jury to the consideration of the third count, which charged him with unlawfully transporting "whisky"; and the jury returned a verdict of guilty and assessed his punishment at three years' confinement in the penitentiary.

The record discloses in this case that the statement of facts is principally in question and answer form, which we are prohibited from considering under article 846 of Vernon's Ann. C. C. P. 1916, and are limited to considering only the questions raised relative to other matters which do not take into question the evidence in the case.

In the outset appellant complains of a conflict between what is known as the Dean Law (Vernon's Ann. Pen. Code Supp. 1922, art. 544¼ et seq.), and the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), and the publication of said acts which we deem it unnecessary to go into any lengthy discussion of, as this court has repeatedly held against his contentions along this line. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Goforth v. State (Tex. Cr. App.) 269 S. W. 98.

There is also complaint urged against said indictment because it does not allege that said whisky was being transported for sale. This contention has been overruled by this court. McNeil v. State, 93 Tex. Cr. R. 259, 247 S. W. 536; Bailey v. State, 97 Tex. Cr. R 312, 260 S. W. 1057; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

Appellant also complains of the indictment because it alleges whisky instead of intoxicating liquor. In the case of Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090, this court held in effect that where the indictment charged that the defendant did unlawfully possess liquor capable of producing intoxication for the purpose of sale, the same was sufficient, as the term "liquor" in prohibition laws has often been termed synonymous with "intoxicating liquor," and, while there was no necessity of the pleader in departing from the statutes, it was not reversible error.

It has often been held that this court will take judicial knowledge of the fact that whisky is intoxicating and is intoxicating liquor. From the above, we are of the opinion that there is no reversible error in the matter complained of. We have disposed of all the matters in this case which do not involve a consideration of the statement of facts, and, as above stated, on account of same being in question and answer form, we are prohibited from considering the other matters raised.

From the record as presented to us, we are of the opinion that there are no reversible errors shown, and that the judgment of the lower court should be affirmed; and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists we were in error in not considering the statement of facts....