Harrison v. State , 95 Tex. Crim. 513 ( 1923 )

Upon his plea of guilty to transportation of whisky appellant's punishment was assessed at one year in the penitentiary.

It was not necessary to allege in the indictment that transportation of the liquor was for the purpose of sale. Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 572, Cecil v. State, 92 Tex.Crim. Rep., 243 S.W. Rep., 988; Copeland v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 818; McNeil v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 536.

At the time appellant was arrested he was found in possession of twenty-nine half-gallon fruit jars of whisky. He had broken some of the bottles or jars before the officers could overtake the automobile in which he was transporting it, but admitted to them at the time of the arrest that he had started with eighteen gallons. The State proved over objection that there was also found in appellant's possession along with the whisky a pint beer bottle about half full of coloring material such as is used for coloring white whisky red, the objection being that it tended to prove other offenses against accused, viz, either of selling whisky or of having it in possession for the purpose of sale, and that it was prejudicial to appellant in the jury's consideration of his plea for a suspended sentence. The objections are not tenable. The proof shows part of the liquor found was white corn whisky, and part red whisky. The presence of the coloring material was res gestae. The jury were properly put in possession of all the facts to enable them to fix the punishment and exercise their judgment in passing upon the issue of suspended sentence.

In view of the fact and the qualification of the trial judge to the bill of exceptions relative to argument of the district attorney no error is presented.

The judgment is affirmed.

Affirmed.

ON REHEARING. October 24, 1923.