Johnson v. State, 30138
| Decision Date | 03 December 1958 |
| Docket Number | No. 30138,30138 |
| Citation | 167 Tex.Crim. 284,319 S.W.2d 713 |
| Parties | Alfred 'Jaybird' JOHNSON, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Billy Hall, Littlefield, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is possession of whiskey and vodka in a dry area for the purpose of sale, with a prior conviction alleged for enhancement; the punishment, 60 days in jail and a fine of $300.00.
Deputy Sheriffs McNeese and Randolph testified that on the afternoon in question they stationed themselves approximately 300 yards, or four city blocks, from the appellant's cafe and, while partially concealed by high weeds and with the aid of binoculars, observed the area. They stated that approximately one block northeast of the cafe was a roofed hog pen and the area between the two was open. After watching approximately 20 minutes, they saw a two toned gray automobile drive up to appellant's cafe and then leave; that the appellant, whom they had known for many years, left his cafe and proceeded toward the hog pen, at intervals looking around in all directions. When the appellant got to the hog pen he reached in one of many old automobile tires resting on the roof and withdrew a reddish brown bottle, placed the same in his pocket, and then repaired to a trash barrel nearby, from which he extricated a white bottle, and then proceeded back to his cafe; but before he arrived the gray automobile came back and the appellant handed something to the driver. Soon thereafter the officers went to the hog pen, searched the automobile tires on the roof, and found therein five pints of whiskey; they then went to the trash barrel, where they found two pints of vodka.
Roy Young testified that he had a hog pen approximately one block northeast of the appellant's cafe and had placed some old automobile tires on the roof to keep it from blowing away, but denied that he had ever placed any intoxicants in or near the pen or had given anyone else consent to do so.
The appellant did not testify or offer any evidence in his own behalf; we find the evidence sufficient to sustain the jury's verdict, and shall discuss the many alleged errors called to our attention in brief and argument.
By motion to quash, the appellant calls attention to an alleged variance between the complaint and the information. In the paragraph of the complaint charging the prior conviction alleged for enhancement appears the word 'transporting,' while in the information if appears as 'unlawfully transport.'
Since the allegation as to the prior conviction need not be made with the same particularity as is required in charging the primary offense, no error is reflected by this bill. Martinez v. State, 163 Tex.Cr.R. 10, 288 S.W.2d 71, and Kite v. State, 162 Tex.Cr.R. 488, 287 S.W.2d 180.
Appellant next raises the following question. When the prosecutor came to prove the prior conviction alleged for enhancement, the appellant called the attention of the court to the fact that this conviction itself was an enhanced conviction and objected to reading the information to the jury. The State offered only that portion of the information which charged the primary offense in the prior conviction and thus supported the allegations in the instant information and proved nothing else. Evans v. State, 160 Tex.Cr.R. 353, 271 S.W.id 429, relied upon by the appellant, had no application.
Appellant next questions the sufficiency of the evidence to support the allegation that Lamb County was a dry area. The State introduced the order canvassing the returns and declaring the results of the...
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