Opinion
No. 21757.
Delivered December 3, 1941. On Motion to Reinstate Appeal January 28, 1942.
1. — Appeal — Jurisdiction.
Where the record contains no notice of appeal and no judgment, and the caption does not show when the term of court began, the Court of Criminal Appeals has no jurisdiction to consider any matter on appeal.
ON MOTION TO REINSTATE APPEAL.2. — Sentence — Misdemeanor.
In a misdemeanor case, sentence is not necessary as a prerequisite to an appeal.
3. — Intoxicating Liquor — Evidence.
Evidence held sufficient to sustain conviction for having possession of illicit alcoholic beverage, to, wit: whisky, in a container to which no tax stamp was affixed.
Appeal from County Court of Ellis County. Hon. C. C. Randle, Judge.
Appeal from conviction for violating the local option law; penalty, fine of $100.00.
Affirmed.
The opinion states the case.
L. D. Johnston, of Waxahachie, for appellant.
Spurgeon E. Bell, State's Attorney, of Austin, for the State.
The appeal is from a fine of $100.00 for the violation of the local option law.
The record contains no notice of appeal; there is no judgment and no sentence, and the caption does not show when the term of court began, for either of which reasons this court has no jurisdiction to consider any matter presented on appeal. Accordingly, the appeal is dismissed.
ON MOTION TO REINSTATE APPEAL.
Conviction was for having possession of illicit alcoholic beverage, to-wit: whisky, in a container to which no stamp was affixed.
The appeal was dismissed at a former day of the term. In the order of dismissal we inadvertently said that among other things the transcript showed no "sentence." It being a misdemeanor, of course no sentence was necessary. The defects in the record have been remedied in the essentials necessary by a supplemental transcript. The appeal is reinstated and will now be disposed of on its merits.
Officers entered a house occupied by appellant and his brother, O. P. Little, by virtue of a search warrant. No one was present except appellant. He was seen by the officers pouring the contents of two half pint bottles through a hole in the floor. When first seen the bottles appeared to be about full. By the time the officers stopped him only a small quantity — a few drops — remained in each bottle. A considerable amount of the liquid had spilled and spread out on the floor around the hole. The scent of whisky was noticeable. Enough liquor remained in the bottles for the officers to taste, which they did, and testified that it was whisky. Appellant told the officers it was whisky, and that it belonged to him, and not to his brother; that he had bought it from a Bohemian. The bottles had no stamp tax on them evidencing payment of tax.
The only two bills of exception in the record question the sufficiency of the evidence to support the conviction. The State's evidence related demonstrates that the contention is without merit.
The judgment is affirmed.