Crowley v. State

Decision Date31 May 1922
Docket Number(No. 6931.)
PartiesCROWLEY v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Swisher County; R. C. Joiner, Judge.

M. F. Crowley was convicted of unlawful transportation of intoxicating liquor, and he appeals. Affirmed.

W. F. Hendrix, of Tulia, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone and R. G. Storey, Asst. Attys. Gen., for the State.

HAWKINS, J.

Conviction is for the unlawful transportation of intoxicating liquor. Punishment was assessed at confinement in the penitentiary for two years.

Appellant complains in his motion for new trial that one of the jurors was biased in favor of the enforcement of the liquor law and supports the motion by an affidavit of a party by the name of Dickinson. It appears from the bill attempting to present this matter that evidence was heard upon the motion for new trial, but the same is not included in the bill. There is in the record a statement of facts which appears to be the evidence taken upon the hearing of the motion for new trial, approved by the attorneys and the trial judge. The bill of exception upon this issue was not filed in the lower court until February 18, 1922, and the statement of facts was not filed until January 11, 1922. The term of court at which the trial was had adjourned December 4, 1921. The bill of exception and statement of facts cannot be considered by us because not filed during the term of court. This has been the uniform holding of this court since the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Parroccini v. State (Tex. Cr. App.) 234 S. W. 671, and citation of authorities upon this point at page 675 of the latter opinion. The statement of facts authorized to be filed after adjournment of court is limited solely to those facts adduced upon the trial upon the issue of guilt or innocence, and not to the facts adduced upon a hearing of the motion for a new trial. Hemphill v. State, 75 Tex. Cr. R. 63, 170 S. W. 154; Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152; Dukes v. State, 74 Tex. Cr. R. 300, 168 S. W. 96; Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726.

Appellant raised the question of apparent conflict between the state and national liquor laws by a motion to transfer this case to the federal court, and also by motion to quash the indictment. These questions have all been settled adversely to appellant's contention and will not be discussed. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337; and many other cases decided by this court subsequent to the opinion in the Gilmore Case, supra.

The indictment was returned on June 4, 1921, and alleged the date of the offense as May 28, 1921. Conviction was under the fifth count of the indictment, which was the only one submitted to the jury, and charged that appellant in Swisher county, Tex., did unlawfully, and not for medicinal, mechanical, scientific, or sacramental purposes, transport intoxicating liquor. Motion to quash this count in the indictment was filed because it failed to allege that the transportation was for the purpose of sale. We judge from appellant's brief that he is relying upon the many cases decided by this court since the amendment to the liquor law adopted at the first and second called sessions of the Thirty-Seventh Legislature (page 233 [Vernon's Ann. Pen. Code Supp. 1922, art. 588¼ et seq.]), in which it has been held that an indictment charging the possession of intoxicating liquor is defective unless it be alleged that it was so possessed for the purpose of sale. The construction placed upon section 1 of the amended act as it relates to the possession of intoxicating liquor does not apply to one charged with the transportation thereof, as will be apparent from a reading of said section, which is as follows:

"That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, take orders for, solicit, or furnish spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicant whatever, or any equipment for making any such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited."

It is not necessary under the foregoing section to allege that the liquor in question was for the "purpose of sale" unless the pleader is attempting to charge the possession or receiving thereof. Stringer v. State (Tex. Cr. App., No. 6954) 241 S. W. 159, opinion May 24, 1922. Neither is it necessary in charging other offenses under such section, since the amendment became effective to negative the exceptions, as they are now defensive matters, and not descriptive of the offense. However, the offense in the instant case was alleged to have been committed in May, 1921, and the amendment did not take effect until November 15, 1921; therefore the pleader in this case properly charged the offense under the law as it was at the time the indictment was returned, and properly alleged that the transportation was not for medicinal, mechanical, scientific, or sacramental purposes. The court properly declined to quash the fifth count for the reasons heretofore stated.

It appears from bill of exception No. 3 that appellant filed a motion to suppress a statement or confession made by appellant on the ground "that he was assured by Deputy Sheriff Eubanks that if he would make such a statement he would be released on a fine for drunkenness," and also another statement which it appears from the motion was made to county attorney...

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37 cases
  • Welchek v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 22, 1922
    ...as surplusage. To charge "transportation" it is not necessary to allege that the liquor was being transported "for sale." Crowley v. State (Tex. Cr. App.) 242 S. W. 472; Cecil v. State (Tex. Cr. App.) 243 S. W. 988; Copeland v. State (Tex. Cr. App.) 244 S. W. 818; Land v. State (No. 7164) 2......
  • Reese v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 29, 1922
    ...234 S. W. 671; Jurado v. State, 91 Tex. Cr. R. 490, 239 S. W. 617; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215; Crowley v. State (Tex. Cr. App.) 242 S. W. 472. Second, the evidence brought forward upon the question at issue, and incorporated as a part of the bill of exception, consis......
  • Gandy v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 12, 1924
    ...was not necessary to charge in the indictment, nor to prove, that the transportation was for the purpose of sale. See Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472; Cecil v. State, 92 Tex. Cr. R. 359, 243 S. W. 988; Copeland v. State, 92 Tex. Cr. R. 554, 244 S. W. 818; Turner v. State......
  • Vineyard v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 8, 1922
    ...term time. Many cases will be found collated in Parroccini v. State, 90 Tex. Cr. R. 320, 234 S. W. 671. See, also, Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472, and cases cited therein. It follows that the bills mentioned cannot be considered. However, before observing the date of fi......
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