Tucker v. State

• Decision Date: 04 April 1923
• Docket Number: (No. 7575.)
• Citation: 251 S.W. 1090
• Parties: TUCKER v. STATE.
• Court: Texas Court of Criminal Appeals

251 S.W. 1090

TUCKER v. STATE.

(No. 7575.)

Court of Criminal Appeals of Texas.

April 4, 1923.

Rehearing Denied June 6, 1923.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Kitrell Tucker was convicted of the unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Elam & Manning, of Mineral Wells, and Preston Martin, of Weatherford, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant conducted a cold drink stand. A search of his premises revealed that there were four one-gallon bottles of whisky in his possession. The witness Woodall called at the appellant's place of business and told him that Jimmie Binson wanted a pint of whisky. Appellant delivered to Woodall a bottle filled with liquid which had the appearance of whisky, and he received from Woodall in payment therefor the sum of $3. Woodall then delivered the bottle to Binson, who was a negro porter at a certain hotel. Massey, a guest of the hotel, asked Binson to get him some whisky and gave him a $5 bill for that purpose. Binson returned with a pint of whisky which he delivered to Massey. Binson gave Massey no change.

The evidence is deemed sufficient to sustain the finding by the jury that the appellant possessed intoxicating liquor for the purpose of sale.

The indictment charged that the appellant "did unlawfully possess liquor capable of producing intoxication, for the purpose of sale." It is claimed that the indictment charges no offense. The statute denouncing the offense describes the articles prohibited in these words:

"* * * Spirituous, vinous, or malt liquors, or medicated bitters, capable of producing intoxication, or any other intoxicant whatever."

See Acts 37th Leg. 1st Called Sess. c. 61. That chapter is amendatory of certain sections of chapter 78, Acts 36th Leg. 2d Called Sess. (Vernon's Ann. Pen. Code Supp. 1922, art. 588¼ et seq.) in which the prohibited articles are described in the same manner. In one of the sections of that act it is declared:

"The words `intoxicating liquors' or `liquors' hereafter used in this act shall be held to include and comprehend all liquors referred to in the first and second sections of this act." Vernon's Ann. Pen. Code Supp. 1922, art. 588¼aa.

The term "liquor" in prohibition laws has often been treated as synonymous with intoxicating liquor. See Words and Phrases, Second Series, vol. 3, p. 153; Carswell v. State, 7 Ga. App. 198, 66 S. E. 488; Austin v. Shelton, 122 Tenn. 634, 127 S. W. 446; People v. Myers, 185 N. Y. 558, 77 N. E. 1193.

The necessity of the pleader departing from the language of the statute is not perceived. This practice often leads to confusion and reversals, and always to the presentation of additional questions for decision on appeal. In the present instance, however, we are of the opinion that the indictment charges an offense.

The prosecuting attorney, in the course of his argument, said:

"Gentlemen of the jury, I know you will convict the defendant if you follow the precedent you have heretofore lain down."

Appellant's counsel interposed an objection, and the court stopped the prosecuting officer, rebuked him for using the language, and instructed the jury that it was improper. It was withdrawn from their consideration. It is stated in the bill that exception was reserved to the remarks, for the reason that the jury had been trying similar cases and had rendered verdicts of guilty. This is simply stated as a ground for the objection, and is not verified by the trial judge as a matter of fact. We do not regard the matter as presented in the bill as one authorizing a reversal of the judgment.

No errors appearing, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files a motion for rehearing in which he questions the correctness of our opinion holding the indictment in this case sufficient. We have again reviewed the subject. Our Constitution and statutes make penal the sale of spirituous, vinous, and malt liquor and medicated bitters "capable of producing intoxication." This latter phrase qualifies each of the four kinds of liquor named, and we conceive that an indictment which charges either separately or jointly the sale of spirituous, vinous or malt liquor or medicated bitters, would be fatally defective, if it did not also charge that said liquor was capable of producing intoxication, where the prosecution was brought under the first section of the Dean Law. The essence of the crime attempted to be charged is the sale of intoxicating liquor. In prosecutions under former liquor laws in this state it was held not necessary to...