Powell v. State

Decided March 22, 1922

Court of Criminal Appeals of Texas · decided 1922-03-22

1. Intoxicating liquors <§=139 — Possession not offense unless for purpose of sale. Under Acts 37th Leg. (1921) First Called Sess. c. 61, amending the Prohibition Law, the possession of intoxicating liquor is no longer an oifense, unless had for purpose of sale. 2.'Intoxicating liquors <&wkey;202 — Possession for purpose of sale must be alleged. Under Acts 37th Leg. (1921) First Called Sess. c. 61, it is necessary to allege that defendant’s possession of’intoxicating liquor was for the purpose of sale, and an indictment not so alleging is fatally defective.

Reversed, and prosecution, dismissed · Decided 1922-03-22

HAWKINS, J.

¶1Conviction was for possessing intoxicating liquor. Punishment, iy3 years in the penitentiary.

¶2[1,2] Acts of the Thirty-Seventh Legislature, First and Second Called Sessions, p. 233, so amended the Prohibition Law (Acts 36th Leg. [1919] 2d Called Sess. c. 78) as tS mate it no longer an offense to have possession of intoxicating liquor unless had for the purpose of sale. Under many decisions of the court heretofore rendered construing the effect of the amendment, it is necessary to allege and prove that possession of intoxicating liquor was for the purpose of sale, and, such allegation not appearing in the indictment in the instant case, it becomes necessary to reverse the judgment of the trial court and dismiss the prosecution under the present indictment.