Opinion
No. 21559.
Delivered April 23, 1941.
Intoxicating Liquor (Untaxed) — Evidence — Possession.
In prosecution for possessing untaxed liquor, evidence held sufficient to take to the jury the question of whether defendant had in his possession at the time of his arrest a bottle of intoxicating liquor, without affixed thereto a State tax stamp evidencing a payment of such tax to the State.
Appeal from the County Court of Erath County. Hon. Wallace Scott, Judge.
Appeal from conviction for possessing untaxed liquor; penalty, fine of $100.00.
Affirmed.
The opinion states the case.
Williamson Nordyke, of Stephenville, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State, on submission.
Appellant was charged with the possession of untaxed liquor, and upon a conviction therefor he was fined the sum of $100.00, hence this appeal.
The testimony shows that two officers passed appellant who was walking near a country road in Erath County, and they noticed a peculiar bulge about his shirt. After they had passed him they turned around and started back toward appellant, who had crossed to the other side of such road, and who "leaned over as though picking grass burrs out of his trousers." Appellant then went back to a large sign near the roadside and slipped a bottle out of his shirt, and broke the bottle against a portion of said sign, taking three strokes before he broke such bottle. Upon apprehending appellant, the officers went to where the bottle had been broken and found same, and they testified that such bottle had contained moonshine whisky, and had no stamp of any kind upon it. There was also a fresh damp spot where the bottle had been broken, and the pieces of bottle smelled of moonshine whisky, both officers testifying that they were familiar with the smell of such whisky, and knew that this was the smell of moonshine, and both testified that this broken bottle had no State stamp thereon showing the payment of the State tax.
There is but one bill of exceptions in the record, and that complains of the trial court's refusal to grant a motion for a peremptory instruction.
We think that the evidence herein presented is sufficient upon which the jury could say that appellant had at such time in his possession a bottle of intoxicating liquor which did not have affixed thereto a State tax stamp evidencing a payment of such tax to this State.
The judgment is therefore affirmed.