Johnson v. State
| Decision Date | 22 May 1929 |
| Docket Number | (No. 12197.) |
| Citation | 17 S.W.2d 1074 |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
W. M. Johnson was convicted of possessing liquor for purpose of sale, and he appeals. Reversed and remanded.
Chastain & Judkins and Milton E. Lawrence, all of Eastland, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
The offense charged is the unlawful possession for the purpose of sale of malt, vinous, and spirituous liquor containing in excess of 1 per cent. of alcohol by volume, as denounced by article 667, P. C. 1925; punishment fixed at confinement in the penitentiary for a period of two years.
The liquor in question was 140 bottles of beer. While controverted the proof was sufficient to show that it was possessed by the appellant, and there were circumstances tending to show that it was intended for sale. The liquid was not analyzed, but was proved to be beer, a malt liquor containing more than 1 per cent. of alcohol by volume. The appellant testified that the liquor was not intended for sale but for the use of himself and some friends who were going on a fishing trip.
The court instructed the jury, in substance, that the possession of more than one quart of malt liquor containing in excess of 1 per cent. of alcohol by volume would be prima facie evidence of the guilt of the accused. The instruction mentioned was made the subject of complaint and is properly presented for review. The contention is deemed sound. In article 666, P. C., traffic in intoxicating liquors is denounced. Manifestly, the purpose of article 667, P. C., was to penalize the traffic in nonintoxicating liquors. The right under the Constitution of the state, through appropriate legislation, to control the traffic in nonintoxicating beverages has been upheld on many occasions. See Luther v. State of Nebraska, 83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146, and annotations in the notes; also North Dakota v. Fargo Bottling Works Co., 19 N. D. 396, 124 N. W. 387, 26 L. R. A. (N. S.) 873, and the authorities cited in the opinion and notes. See, also, Claunch v. State, 82 Tex. Cr. R. 355, 199 S. W. 483. The distinction between the two offenses denounced by the statute mentioned is clearly stated in the opinion of this court written by Judge Lattimore in Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913; also in the case of Burgess v. State (Tex. Cr. App.) 9 S.W.(2d) 339. The distinction has been recognized by the Supreme Court of this state in Ex parte Green, 114 Tex. 389, 270 S. W. 158. The same ruling has been followed in numerous decisions of this court. Among them are the following: McNeil v. State, 93 Tex. Cr. R. 261, 247 S. W. 536; Berry v. State, 94 Tex. Cr. R. 5, 249 S. W. 223; Hooper v. State, 94 Tex. Cr. R. 279, 250 S. W. 694; Phillips v. State, 94 Tex. Cr. R. 496, 251 S. W. 811; Tucker v. State, 94 Tex. Cr. R. 508, 251 S. W. 1090; Meador v. State, 94 Tex. Cr. R. 608, 253 S. W. 297; Turner v. State, 95 Tex. Cr. R. 594 255 S. W. 439; Hughes v. State, 99 Tex. Cr. R. 247, 268 S. W. 960; Huddleston v. State, 103 Tex. Cr. R. 110, 280 S. W. 218; Henson et al. v. State, 103 Tex. Cr. R. 126, 280 S. W. 592; Burley v. State, 105 Tex. Cr. R. 409, 288 S. W. 1089; Williams v. State, 106 Tex. Cr. R. 420, 292 S. W. 898; Jackson v. State, 109 Tex. Cr. R. 529, 5 S.W.(2d) 989.
In giving the instruction of which complaint is made the learned trial judge was doubtless influenced by the language in articles 671 and 672, P. C. 1925, which read respectively as follows:
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