Opinion
No. 13540.
Delivered October 8, 1930.
1. — Intoxicating Liquor — Evidence.
The incriminating facts and circumstances shown to have occurred from and including June 29, 1929 to about October 6, 1929 were sufficient to support the verdict.
2. — Evidence.
The offense charged was a continuous one, and the evidence as to the things occurring from and including June 29, 1929, to about October 6, 1929 are not too remote since the record does not show entirely unrelated transactions.
3. — New Trial.
The order overruling appellant's motion for a new trial recites that evidence was heard thereon and in the absence of the record showing what evidence was heard, appellants complaint as to the misconduct of the jury cannot be appraised.
Appeal from the District Court of Callahan County. Tried below before the Hon. M. S. Long, Judge.
Appeal from a conviction for the unlawful possession of intoxicating liquor; penalty, confinement in the penitentiary for three years.
The opinion states the case.
Tom J. Cunningham of Eastland, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
Offense, the unlawful possession of intoxicating liquor; penalty, three years in the penitentiary.
The State's case was one of circumstantial evidence and the Court so charged. Many incriminating facts and circumstances were testified to by witnesses as having occurred from and including June 29, 1929, to about October 6, 1929. These are regarded as sufficient to support the verdict.
Particular objections appear to the testimony which relates to matters occurring in September and October, 1929, as being too remote, since the indictment alleges the date of the offense as June 29, 1929. The offense charged was a continuous one. The record does not affirmatively show entirely unrelated transactions and offenses and if it did, there was no request either for an election between offenses proven or any limitation upon the testimony showing such. In continuous offenses of this character it is admissible on a question of intent to prove different sales of intoxicating liquor where they are sufficiently related in point of time and place. The purpose for which the intoxicating liquor was possessed is made an indispensable element of proof by the statute. (Art. 666, P. C.) The following authorities illustrate the admissibility of the testimony to which objection was made in this case. Jenkins v. State, 24 S.W.2d 1092; Arnold v. State, 7 S.W.2d 1083; Boggus v. State, 13 S.W.2d 109; Overley v. State, 104 Tex. Crim. 386.
Misconduct of the jury is alleged in appellant's motion for new trial and supported by the testimony of one juror, as shown by bill of Exception No. 20. The order overruling such motion recites the hearing of evidence thereon and such evidence has not been brought forward in the record, other than what appears in said bill. The record is bare of any showing that this was all the evidence heard by the trial judge. Aside from statements in appellant's brief, we do not know what evidence was before the Court on this issue. Under such circumstances we are not able to appraise the merits of appellant's contention. This has been so many times decided that we pass it with citation to 4 Tex. Jur., Paragraph 142, where some of the authorities are collated.
Finding no error in the record, the judgment is affirmed.
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.