McCleland v. State

HAWKINS, J. Conviction is for violation of the liquor law. Punishmhpt two years’ confinement in the penitential. The indictment contains two counts; the first charging the transportation of intoxicating liquors, and the second having possession of intoxicating liquors. No motion was made to quash either count in the indictment, nor was there a request for the state to elect upon which count it would seek a conviction. Both counts were submitted to the jury, a general verdict returned, and upon that a general judgment of guilty entered. No statement of facts accompanies the record, and three purported bills of exception cannot be considered. Court adjourned on June 25, 1921. Appellant was allowed 60 days in which to file statement of facts and bills of exception. The purported bills were not filed until September 3, 1921, which is more than 60 days after adjournment of court. Moreover, the bills of exception are not approved by the trial judge, and in that condition they should not have been filed by the clerk in the court below. They really have no place in the record in their present condition. Since the amendment by Acts 37th Leg. 1st Called Session, p. 233 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et .seq.), it is no longer an offense to have possession of intoxicating liquors, unless the same is had for the purpose of sale, and under many opinions handed down by this court since the amendment in question that count of the indictment against appellant, seeking to charge him with possession of intoxicating liquors is bad. Petit v. State (Tex. Cr. App.) 235 S. W. 579; Lee v. State (Tex. Cr. App.) 235 S. W. 1093. The judgment will be reformed, to make the conviction apply to the. first count, charging the unlawful transportation, and, as thus reformed, the judgment of the trial court will be affirmed.