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160 Tex. Crim. 531

Smith v. State

Court of Criminal Appeals of Texas

Decided October 20, 1954

Court of Criminal Appeals of Texas · decided 1954-10-20

Cited by 2 later decisions — most recently March 1960

2 state decisions

Relies on 146 Tex. Crim. 342 - Smiley v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1954-10-20

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WOODLEY, Judge.

¶1The conviction is for possession of whisky and beer in a dry area for the purpose of sale; the punishment, which the jury was authorized to enhance by reason of two prior convictions, five months in jail anl a fine of $250.

¶2The evidence shows that appellant was found in possession of two half-pints of whisky, which were taken from her purse by the arresting officers, and 24 cans of beer, which were in the refrigerator in appellant’s home.

¶3Appellant admitted the possession of the whisky and beer, but testified that it was for her own personal use. She denied that she possessed it for the purpose of sale.

¶4It was established that the area was dry and proof of the prior convictions in the fall of 1953, alleged for enhancement of punishment, was offered in evidence, one being for the sale of whisky and the other for possession of whisky for the purpose of sale in a dry area.

¶5*532Appellant admitted that she had “pleaded guilty as many as two times before to the offense of selling whisky in a dry area and once for possession of whisky in a dry area for the purpose of sale.”

¶6The question of appellant’s purpose or intent in regard to the whisky and beer was for the jury. They were not bound to accept her testimony on that issue as true. We overrule the contention that the evidence is insufficient to sustain the conviction. Smiley v. State, 146 Texas Cr. Rep. 342, 174 S.W. 2d 973.

¶7Aside from attacking- the sufficiency of the evidence, appellant presents one bill of exception. She complains of the argument of the county attorney wherein he remarked that the defendant “had been a bootlegger all of her life.”

¶8The trial judge instructed the jury not to consider the remarks, and appellant’s complaint is that the remarks were of such a nature that the instruction could not cure the prejudicial effect thereof. He excepted to the remarks, notwithstanding the court’s instruction, and to the refusal by the court of his motion that a mistrial be declared.

¶9In view of the testimony and the admissions of appellant of her past pleas of guilty (one being of date not disclosed by the record) and the action of the trial court in the matter, the argument is not deemed such as to call for reversal.

¶10The judgment is affirmed.

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