Sellman v. State

Full title: JIM SELLMAN v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: Jan 31, 1940

136 S.W.2d 214 (Tex. Crim. App. 1940)

136 S.W.2d 214

Opinion

No. 20801.

Delivered January 31, 1940.

1. — Intoxicating Liquor (Possession for Sale in Dry Area) — Charge — Penalty.

Where the minimum penalty for possessing beer in a dry area for the purpose of sale was $100, but trial court charged the penalty prescribed in Art. 667-26 P. C., in which the minimum penalty is fixed at $25, and the fine assessed against defendant was $250, which was an amount between the minimum fine and maximum fine for the offense charged against defendant, charge of court relative to penalty, while erroneous, did not injure the rights of defendant.

2. — Intoxicating Liquor (Possession for Sale in Dry Area) — Evidence.

Evidence was sufficient to sustain conviction for possessing beer in a dry area for the purpose of sale.

Appeal from County Court of McCulloch County. Hon. Howell E. Cobb, Judge.

Appeal from conviction for possessing beer in dry area for purpose of sale; penalty, fine of $250.

Affirmed.

The opinion states the case.

Glenn Capps, of Mason, for appellant.

Lloyd W. Davidson, State's Attorney, of Austin, for the State.

CHRISTIAN, Judge.

The offense is possessing beer in a dry area for the purpose of sale; the punishment, a fine of $250.

The offense charged is denounced by Art. 666-4, Vernon's Ann. Texas P. C. The penalty applicable is set forth in Art. 666-41, Vernon's Ann. Texas P. C., the minimum penalty being $100. The trial court gave the penalty prescribed in Art. 667-26, Vernon's Ann. Texas P. C., in which the minimum penalty is fixed at $25. In charging the provisions of the article last mentioned the court fell into error, and appellant's exception to the charge should have been sustained. However, it is not every misstatement of the penalty that will work a reversal of the judgment. In the present case it is observed that the fine assessed against appellant was $250, which was an amount between the minimum fine and the maximum fine prescribed in Art. 666-41, supra. Under the circumstances, we are constrained to hold that the erroneous charge of the court relative to the penalty did not injure the rights of the appellant. Sulak v. State, 40 S.W.2d 157.

The evidence is deemed sufficient to support the judgment of conviction.

The judgment is affirmed.

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.