Hill v. State, 28165

Decision Date14 March 1956
Docket NumberNo. 28165,28165
Citation163 Tex.Crim. 331,290 S.W.2d 677
PartiesCornelius HILL, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

C. C. Divine, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the sale of whiskey in a wet area without having procured a permit from the Texas Liquor Control Board, with prior offenses of like character alleged to enhance the punishment; the punishment, one year in jail and a fine of $1,000.

An employee of the Liquor Control Board testified that he went to a certain address in the City of Houston after mid-night on the day charged in the information and there purchased from the appellant two half pints of whiskey, that he returned approximately one-half hour later and purchased still another one-half pint. Officer Farris. Officer Farris.

The prior convictions were established, and the appellant was identified as being the person therein convicted.

The appellant did not testify and offered no evidence in his own behalf.

Appellant contends that the court erred in admitting into evidence over his objection an affidavit of Coke R. Stevenson, Jr., Administrator of the Texas Liquor Control Board, in which he certifies that he is the custodian of the records of said Board and that he had searched the same and found no record of a license to sell alcoholic beverages having ever been issued to the appellant.

The objection was that he was denied the right to cross-examine the witness. In Fite v. State, 158 Tex.Cr.R. 611, 259 S.W.2d 198, this Court held that the provisions of Article 3731a, Vernon's Ann.Civ.St., were applicable to criminal cases.

Section 5 of said Act provides:

'A written statement signed by an officer having the custody of an official record, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.'

No objection was made that the terms of Section 3 of said Act had not been complied with, and therefore we are not called upon to pass upon the question of surprise.

Finding no reversible error, the judgment of the trial court is affirmed.

On Appellant's Motion for Rehearing

WOODLEY, Judge.

It is now contended that the prior misdemeanor convictions alleged to enhance the punishment were not available for that purpose because they were not for offenses of like character to the presently charged offense.

The prior convictions were each for the offense of selling liquor on Sunday, in violation of Art. 666-25, Sec. (c), Vernon's Ann.P.C., whereas the presently charged offense is the violation of Art. 666-4, Sec. (a), V.A.P.C.

Both statutory provisions are applicable to wet areas where the sale of whisky is lawful provided that the right or privilege is granted by some provision of the Texas Liquor Control Act, Articles 666-667, V.A.P.C.

Article 666-4, V.A.P.C. provides that such right and privilege so granted may be enjoyed and exercised only in the manner provided in said act.

The sale of whisky in a wet area without a permit of the class required for such privilege is unlawful. Art. 666-4, Sec. (a), V.A.P.C., and the sale of liquor in a wet area on Sunday is unlawful. Art. 666-25, Sec. (c), V.A.P.C. The punishment for each of such offenses is to be found in Art. 666-41, V.A.P.C.

It follows that no person may exercise or enjoy the privilege of selling whisky in a wet area on Sunday, nor may he so sell without securing the required permit.

We have held that the sale of beer on Sunday by licensee in a wet area and the possession of intoxicating liquor for the purpose of sale in a dry area are not offenses of like character. Andrews v. State, 154 Tex.Cr.R. 392, 228 S.W.2d 173.

We decline to extend the rule there stated to violations of the law regulating the sale of whisky in a wet area, and hold that the offense of selling whisky on Sunday and that of selling whisky without a permit in a wet area are offenses of like...

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5 cases
  • Press v. State, 30444
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 4, 1959
    ...presents no error. Hickox v. State, 104 Tex.Cr.R. 649, 285 S. W. 621; Adams v. State, 158 Tex.Cr.R. 306, 255 S.W.2d 513; Hill v. State, 163 Tex.Cr.R. 331, 290 S.W.2d 677; Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114, and Hutson v. State, 164 Tex.Cr.R. 24, 296 S.W.2d Finding the evidence......
  • Santoscoy v. State, 55910
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 16, 1980
    ...He may not raise this objection for the first time on appeal. Campbell v. State, 521 S.W.2d 636 (Tex.Cr.App.1975); Hill v. State, 163 Tex.Cr. 331, 290 S.W.2d 677 (1956). The appellant recognizes that such a statement, by virtue of Article 3731a, Section 5, is an exception to the rule agains......
  • Spencer v. State, 28891
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 3, 1957
    ...the fingerprint cards and photographs in connection with the records of the prison system were admissible in evidence. Hill v. State, Tex.Cr.App., 290 S.W.2d 677. The fingerprint cards and photographs were not hearsay and were relevant because proof of the prior convictions and appellant's ......
  • Hill v. State, 28757
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 16, 1957
    ...of Article 666 for which a definite punishment is not provided. S.B. 117, Acts 48th Leg., p. 509, ch. 325, Sec. 8. Hill v. State, Tex.Cr.App., 290 S.W.2d 677; Skaggs v. State, 157 Tex.Cr.R. 195, 247 S.W.2d 906; Shafer v. State, 151 Tex.Cr.R. 558, 209 S.W.2d The judgment is affirmed. ...
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