
    REECE v. STATE.
    (No. 5913.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1921.)
    Intoxicating liquors &wkey;>242 — Penalty foi* violating prohibition law not to be assessed as prescribed in Volstead, Act.
    Court did not err, in a prosecution for violation of the prohibition law, in charging the penalty under the state law, instead of the punishment as prescribed in the Volstead- Act of Congress.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Louis Reece was convicted of having in his possession a still, and appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The appellant was indicted in Camp county, charged with having in his possession a still, the same then and there being an equipment for making intoxicating liquor, and not for mechanical, medicinal, scientific, and sacramental purposes. Upon the case being called for trial, appellant entered his plea of guilty, and upon such plea he was. convicted, and his punishment assessed at two years in the penitentiary.

Notwithstanding the appellant entered his plea of guilty, his counsel excepted to the court’s charge upon the plea of guilty, and insisted that the court should have instructed the jury to assess the appellant’s punishment as prescribed in the Volstead Act of Congress (41 Stat. 305), instead of the penalty prescribed by the laws of the state of Texas. It does not appear that exception was reserved to the action of the trial court in refusing this charge, but it does appear that it was presented to the court before his main charge was read to the jury and before argument. All other proceedings in the trial seem to be regular, but, of course, if this requested instruction is the law, then the court should not have charged the penalty under the state law, and there would be fundamental error; but under the recent authority of Ex parte Gilmore, 228 S. W. 199, this question was decided against appellant, both in the original opinion and upon motion for rehearing.

There being no other matters appearing of record for review, the judgment is ordered affirmed. 
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