Opinion
No. 8613.
Appeal dismissed February 11, 1925. Reinstated and affirmed March 18, 1925.
1. — Sale of Intoxicating Liquor — Recognizance Defective — Cause Dismissed.
The purported recognizance set out in the record in failing to name the offense is fatally defective and the appeal is dismissed. See Art. 903, C. C. P.
2. — Same — Appeal Reinstated.
A good and proper recognizance having been filed within fifteen days from the date of dismissal, the cause is reinstated. See Art. 923, C. C. P.
3. — Same — Evidence — Held Sufficient.
Where the evidence sufficiently identifies the liquid introduced in evidence, shown on analysis to have contained thirty-five per cent alcohol, a special charge that the liquid analyzed was not shown to have been the same as that sold by appellant, was properly refused.
Appeal from the District Court of Kaufman County. Tried below before the Hon. Joel R. Bond, Judge.
Appeal from a conviction for the sale of intoxicating liquor; penalty, one year in the penitentiary.
The opinion states the case.
No brief filed by the appellant.
Tom Garrard, State's Attorney, and Grover C. Morris, Assistant State's Attorney, for the State.
The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
The purported recognizance set out in the record is defective in failing to state the name of the offense. See Art. 903, C. C. P.
The motion of the State to dismiss the appeal must be sustained, provided, however, that if within fifteen days the motion for rehearing accompanied by a proper recognizance as authorized by Art. 923, C. C. P., is filed the appeal may be reinstated.
The appeal is dismissed.
Dismissed.
ON MOTION TO REINSTATE APPEAL.
According to the testimony of Sidney Wilson, the alleged purchaser, he bought from the appellant a bottle of corn whiskey which was delivered to Rice. The sheriff received the bottle of liquid from Rice, and it was introduced in evidence upon the trial. The liquid was analyzed and shown to be usable as a beverage and to contain thirty-five per cent alcohol.
The special charges to the effect that the liquid analyzed was not shown to have been the same as that sold to Wilson by the appellant were properly refused. The evidence of identity was sufficient to authorize the submission of the question to the jury. Moreover, the witness Wilson testified that the liquid which he purchased was whiskey.
The motion to reinstate the appeal is granted, the dismissal is set aside, and the judgment is affirmed.
Affirmed.