Martin v. State , 134 Tex. Crim. 117 ( 1938 )

The offense is unlawfully transporting in a dry area malt liquor containing alcohol in excess of one-half of one per centum by volume; the punishment, a fine of $25.

The statement of facts does not appear to have been filed in the trial court. Hence it is not entitled to consideration.

The offense charged herein was alleged to have been committed on the 28th day of July, 1937. The trial took place on the 4th of August, 1937, which was prior to the effective date of House Bill No. 5, Acts of the Regular Session of the 45th Legislature. The prosecution proceeded under Sec. 4 of Article 1, Chap. 467, General and Special Laws passed by the 44th Legislature at the Second Called Session (Vernon's Ann. P. C., Art. 666-4), which, among other things, provides that it shall be unlawful to transport in any dry area any liquor containing alcohol in excess of one-half of one per centum by volume. Subdivision 41 of Article 1 of the Act last mentioned provides a penalty for a violation of any of the provisions of Article 1 of said Act for which a specific penalty is not provided, the punishment being a fine of not less than $100 nor more than $1,000 or imprisonment in the county jail for not more than one year, or both such fine and imprisonment. This penalty is applicable in the present case in view of the fact that the prosecution proceeded under Sec. 4 of Article 1, supra. See Austin v. State, 103 S.W.2d 384, and Ex parte Meadows,100 S.W.2d 702. The charge of the court authorized a minimum penalty of $25, and, as already observed, the punishment assessed against the appellant was a fine of $25; whereas, under the complaint and information, the minimum penalty could not properly have been less than $100.

The judgment is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.