Opinion
No. 23364.
Delivered May 29, 1946.
1. — Intoxicating Liquor — Evidence.
In prosecution for unlawfully selling whisky in dry area, accused's guilt was for jury.
2. — Argument — Punishment.
Argument of state's counsel which violated no statutory or mandatory rule and was not inherently vicious was not prejudicial in view of assessment by jury of minimum punishment.
Appeal from County Court of Coleman County. Hon. Leman Brown, Judge.
Appeal from conviction for unlawfully selling whisky in a dry area; penalty, fine of $100.00.
Affirmed.
The opinion states the case.
Baker Baker and R. E. Murphey, all of Coleman, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Unlawfully selling whisky in a dry area is the offense; the punishment, a fine of $100.00.
Russell, an agent of the Liquor Control Board testified that he purchased from the appellant a pint of whisky in Coleman County, for which he paid him $6.00. Said county was a dry area, within the meaning of the Liquor Control Act.
Notwithstanding appellant's affirmative defense or alibi supported by other witnesses, the jury accepted Russell's testimony and we are bound thereby. Appellant's contention that the conviction should be reversed upon the facts is overruled.
Bills of exceptions appear complaining of argument of State's counsel.
The argument complained of violated no statutory or mandatory rule and was not inherently vicious or prejudicial. In view of the assessment by the jury of the minimum punishment, we are unable to reach the conclusion that appellant was injured thereby.
The other matters which appear have been examined and are overruled without discussion.
The judgment of the trial court 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.