Holmes v. State

• Decision Date: 10 February 1909
• Citation: 116 S.W. 571
• Parties: HOLMES v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W. 571

HOLMES v. STATE.

Court of Criminal Appeals of Texas.

February 10, 1909.

Appeal from Montague County Court; Geo. S. March, Judge.

Oscar Holmes was convicted of violating the local option law, and he appeals Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $50 and 20 days' imprisonment in the county jail.

There is a direct conflict in the evidence. The state's witness swears positively to having bought a pint of whisky from appellant, for which he paid him 75 cents. The evidence is rather cogent for appellant, showing that he did not sell or even have any whisky at the time indicated. This only shows a conflict in the evidence, which was settled by the jury. The information alleges that the prosecution was brought under an election held in 1904, putting local option into effect in Montague county. Appellant offered and introduced in evidence the election of 1906. This also resulted favorably for the local option law. Appellant's contention is that the second election, although favorable to the law, repealed the election of 1904, and that this prosecution should have been under the last election. We have decided this matter adversely to appellant in the cases of Massie v. State, 52 Tex. Cr. R. 548, 107 S. W. 846, and Wade v. State, 52 Tex. Cr. R. 608, 108 S. W. 376.

Appellant's third ground of his motion for a new trial is thus stated: "Because the court erred in the 4 of the charge." If that is intended to point out a subdivision or paragraph of the charge, then it would be entirely too indefinite and general to indicate to the court the criticism sought to be imposed upon it, and it does not undertake to point out the defect of the charge. We have held that an exception of this character is entirely too general to require the court to review it.

As the record is presented, the judgment will be affirmed.