Full opinion text
PRENDERGAST, J. Appellant was indicted, tried, and convicted for unlawfully selling intoxicating liquors after an election had been held, declared, etc., and prohibition properly put in force after the felony statute was in force, and his punishment fixed at one year in the penitentiary. Appellant was not represented by counsel on the trial in the court below. No motion for a new trial was made, no bill of exception was taken, and the only assignment appellant now makes through his attorney, after the adjournment of the court, is that the evidence is insufficient to sustain the conviction. Appellant now argues the inconsistencies and claimed contradictions of the testimony of the sheriff of Lubbock county, the state’s main witness. All these matters were for the jury and the lower.court. By an agreed statement prohibition by proper election was carried on May 28, 1910. The proper orders were made, published, and certified as required by law, and prohibition declared in force in said county on June 15, 1910. Whether this is a clerical error of June 15th instead of July 15th is wholly immaterial, because the election having been held and declared in force in June, 1910, it would be immaterial whether it was in June or July, 1910, as the sale is alleged and proven to have been made on June 15, 1911. It is unnecessary to give any lengthy detailed statement of the evidence. We have carefully read and considered it. Mr. Flynn, the sheriff, testified positively that he saw, on said date, June 15,1911. Stonefield, the party to whom the sale is alleged to have been made, pay to appellant $1, and that he saw the appellant go into the train where his grip was, get down over it, open it, and manipulate something therein, then close it up, and walk out. Stonefield then paid him a dollar and went to this same grip, opened it, fumbled around therein, and took a bottle out wrapped up in a particular kind of paper, attempted to put it in his hip pocket, but as he could not do so with the paper on it, took the paper off and went out with the bottle. The parties are shown to have been drinking after that on the same day. Later this grip was opened up, and some 17 pint bottles of whisky of a certain brand were found therein, and the bottle he saw Stonefield take out of that grip was wrapped hi the same kind of paper as each of the other 17 bottles were when the grip was opened. By one of appellant’s witnesses he showed that he loaned to Mr. Stonefield $1 on that date. Appellant in his testimony admitted that he had whisky in this grip, and that he took some of it out that day. He denied making a sale of whisky to Stonefield on that occasion, but admitted that he gave him a bottle of whisky that day. He denied that Stonefield paid him $1 that day at all. The sheriff testified repeatedly and positively that he saw Stonefield give to appellant $1 at that time, and it was shown just after this occurred appellant was seen arranging something in his grip, and immediately aft-erwards Stonefield went in to this same grip and got this bottle of whisky. The evidence, in our opinion, is amply sufficient to sustain the verdict, and the judgment is affirmed.