Thompson v. State

• Decision Date: 12 November 1913
• Citation: 160 S.W. 685
• Parties: THOMPSON v. STATE.
• Court: Texas Court of Criminal Appeals

160 S.W. 685

THOMPSON v. STATE.

Court of Criminal Appeals of Texas.

November 12, 1913.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Shelly Thompson was convicted of selling intoxicating liquors in prohibition territory, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at one year's confinement in the state penitentiary.

The first objection raised in the motion for a new trial in that the indictment was returned against Shelly Thomas, whereas the appellant's name is Shelly Thompson, not Thomas. The following order appears in the record: "After the indictment had been read to the jury, the defendant on his own motion suggested that his name was Shelly Thompson and not Thomas, as stated in the indictment. It is therefore ordered by the court that the correction be made and that the indictment shall read Shelly Thompson, and it was so done." This proceeding was authorized by article 560 of the Code of Criminal Procedure, and the court did not err in ordering the name changed in the indictment in accordance with the suggestion of appellant.

The proof in this case shows that the main prosecuting witness procured a bottle of distilled alcohol from appellant on the 25th day of March, at Diboll; consequently the objection in the motion that the "evidence failed to show the time and place of the offense, if an offense was committed," is not well taken. If it is intended by this ground to raise the question that the evidence does not show that Diboll is in Angelina county, this comes too late in a motion for new trial. It was formerly held that lack of proof of venue could be raised in the motion for a new trial, and for this reason article 904 of the Code of Criminal Procedure was amended in 1897 (Gen. Laws 1897, c. 12) to read that in all cases the court on appeal will presume that the venue was proven in the court below, unless that question was made an issue in the trial of the case and it affirmatively appears by a bill of exceptions properly signed and allowed by the judge. This question, after the amendment was adopted by the Legislature, was fully passed on in McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93.

There is no merit in the contention that a variance is presented because the evidence shows that the sale, if a sale, took place on March 25th, while the court in his charge instructed the jury that if they believed beyond a reasonable doubt that defendant in Angelina county, Tex., at any time during the month of March, and before the 31st day of March, 1913, did sell intoxicating liquors, etc., they would find appellant guilty. The indictment was returned on the 31st day of March, and it was proper for the court to instruct the jury that the offense must have been committed before that date.

The next objection is that the indictment charges that the order published was by order of the commissioners' court. If this objection was supported by the allegations in the...