Cunningham v. State , 52 Tex. Crim. 522 ( 1908 )

In this case the defendant was charged by indictment, which contained two counts, with selling intoxicating liquors in Erath County, in violation of the local option law and with selling malt liquors capable of producing intoxication, without first having obtained license for the purpose of selling such liquors. He was convicted on the second count, and the case is brought before this court and complaint is made of such conviction.

There are many questions made as grounds to set aside such conviction, but they all revolve around one or two propositions. First, that the information on which the conviction was had, charges no offense against the law of this State. Second, that the liquors alleged to have been sold were not, in fact, intoxicating. An examination of the opinions of this court would seem to indicate that there has not been entire harmony in its holding in respect to informations and indictments charging the offense of which appellant was convicted in this case. The matter was, however, pretty thoroughly considered in the case of Robinson v. State, 8 Texas Ct. Rep., 137. In that case the information there considered was held to be bad and the prosecution dismissed, and in view of the apparent uncertainty of the law, Judge Brooks, in a very clear and explicit way, lays down for the guidance of prosecuting officers a correct form of information. Applicable to this charge the information here considered is almost literally in harmony with the form there deliberately adopted, which we believe is in every respect conformable to the law and charges an offense against the law.

The other substantial question raised is as to whether or not the liquor sold was intoxicating. On this question there was a great deal of testimony pro and con. Most of the testimony, indeed, would seem to indicate that the liquor, in fact, sold by appellant was not intoxicating, but there was some evidence, and it was both direct and cogent, sustaining the finding of the jury, which affirms that the liquor sold was intoxicating. We cannot say, under the well-settled rules in this State, that the evidence was so wholly lacking as to justify us in setting aside the verdict of the jury and that it was without evidence to support it.

Finding no error in the record, the judgment of the lower court is in all things affirmed.

Affirmed.

[Rehearing denied, March 20, 1908.]