
    JENKINS v. STATE.
    No. 12970.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1930.
    Rehearing Denied March 5, 1930.
    W. C. Boyd, of Denton, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful possession of intoxicating liquor for the purpose of sale; penalty, one year in the penitentiary.

State’s witness Bud Swanks testified that he went to the home of appellant about 12:30 o’clock in the morning and bought a half-gallon jar full of whisky. Departing from appellant’s home he was apprehended by officers, and the whisky taken away from Mm. A few hours later on the same morning these officers searched appellant’s residence, where this whisky was bought, and there found three half-gallon jars of whisky.

The only law point presented for review is the alleged error of the court in refusing to require the state to elect upon which of these transactions it would ask for a conviction. The offense charged is composed of two elements, namely: (1) The possession of intoxicating liquor, and (2) possession for the purpose of sale. Evidence of a sale is admissible in proof of the latter element. We regard the proof as showing in this case, not two distinct possessions, but only one. The offense by its very nature is a continuous one, and the testimony introduced, is so related in point of time and place as to show, we think, one continuous possession by appellant. To illustrate the point in mind, A is indicted for the offense of possession of intoxicating liquor for the purpose of sale and the proof shows that he sold to B, O, and D at different times on the same day a quart of intoxicating liquor, which he obtained from a twenty-gallon cask. Has the state proved three unlawful possessions or only one? Obviously we think the state shows by-three transactions one possession and only one violation of the statute denouncing possession of intoxicating liquor for the purpose of sale. Only one conviction for possession could be had under such circumstances. Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899; State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R. A. (N. S.) 977. So in this case appellant by proof of two transactions, separated by only a few hours, is shown to be in possession of four half-gallon jars of whisky at the same place. Under such facts, the offense being a continuous one, no election is required. Golden v. State, 72 Tex. Cr. R. 23, 160 S. W. 957; Sisk v. State (Tex. Cr. App.) 42 S. W. 985; 16 C. J. pars. 2969 and 2172; Warrick v. State, 8 Ala. App. 391, 62 So. 342, 343; Treadwell v. State, 168 Ala. 96, 53 So. 290.

TMs being tbe only law question properly presented for review, and tbe evidence being sufficient, tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rebearing.

HAWKINS, J.

Appellant insists that he was entitled to a charge relating to suspended sentence, although he was shown to be more than twenty-five years of age. The statute (article 689, P. C. 1925) and decisions thereunder are against appellant’s proposition. See authorities collated in notes under said article 689, in Vernon’s Ann. Tex. P. C. vol. 1.

Bills of exception attacking tbe affidavit for search warrant, and tbe admission of evidence found by virtue of it, were not considered, because in none of tbe bills is tbe said affidavit brought forward. In this condition tbe bills are incomplete. Pierce v. State, 106 Tex. Cr. R. 116, 290 S. W. 1095; Holmes v. State, 104 Tex. Cr. R. 42, 282 S. W. 585; Fisher v. State, 107 Tex. Cr. R. 383, 296 S. W. 545.

The motion for rehearing is overruled.  