
    BANKS v. STATE.
    (No. 6063.)
    (Court of Criminal Appeals of Texas.
    May 4, 1921.
    Rehearing Denied June 1, 1921.)
    1. Intoxicating liquors &wkey;>!7 — Statute prohibiting possession for other than specified purposes constitutional.
    Acts 36th Leg. 1st and 2d Called Sess. (1919) c. 78, making it unlawful to possess intoxicating liquors for other than enumerated purposes, is not unconstitutional because Const, art. 16, § 20, amended, while forbidding manufacture and sale of such liquors, does not forbid possession thereof; especially as it authorizes prohibitory laws and laws in aid thereof.
    2. Criminal law <@=»720(I0) — Argument assuming whisky intoxicating proper.
    Argument of prosecuting attorney assuming that whisky is intoxicating is proper.
    3. Intoxicating liquors &wkey;>236(6l/2) — Finding that liquor was possessed for unlawful purpose authorized.
    Evidence on prosecution for possession of intoxicating liquor for a purpose other than allowed by Acts 30th Leg. 1st and 2d Called Sess. (1919) c. 78, held sufficient to show that possession was for an unlawful purpose.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Ves Banks was convicted of possessing intoxicating liquor in violation of Dean Law, and lie appeals.
    Affirmed.
    Wynne & Wynne, of Kaufman, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of having in his possession, not for medicinal, mechanical, scientific, or sacramental purposes, certain spirituous, vinous, and intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of two years.

Appellant assails the law under which this prosecution was had as being unconstitutional, asserting that while amended section 20, art. 16, of our state Constitution, as recently adopted, forbade the manufacture, sale, barter, and exchange of the liquors therein described, it nowhere forbids the possession of such liquor. We cannot uphold this contention.

The power of our state Legislature to enact laws extends to the outer limit of judgment anil reason, except there be some constitutional limitation which inhibits the particular enactment. The only reason there has ever been contention in the past against legislative action on the various phases of the liquor traffic, or pertaining to the liquor question, has been that our Constitution, by its local option expression, forbade statutory acts in seeming contradiction thereof. Such is not now the case, éince the local option clause of our Constitution has been absorbed by said amended section 20, supra, and there is now no limitation upon the power of the lawmaking body in this regard, save as above indicated. Not only is it now true that no such limitation exists as heretofore, but subdivision (d) of said section 20 (see Acts 36th Legislature, p. 338) reads as follows:

“Without affecting the provisions herein, intoxicating liquors are declared to be subject to the general police power of the state; and the Legislature shall have the power to pass any additional prohibitory laws, or laws in aid thereof, which it may deem advisable.”

And we see frbm a perusal of the language used in this section of said constitutional amendment that there is now no reason to doubt the constitutionality of a law forbidding the illegal possession of intoxicating liquor, and that same is entirely within the scope of the express direction of said subdivision (d). It would seem not open to dispute that the Legislature has power to enact a law having for its evident purpose the aid and assistance of laws whose exact terms are prescribed by the language of a constitutional direction, and it cannot be argued that if the Constitution forbids the manufacture, sale, transportation, exportation, etc., of intoxicating liquor by express terms, laws forbidding the possession of such liquor are not in aid of laws containing the exact language-of such constitutional direction, and it must be conceded that a law forbidding the possession of such liquor would be in furtherance of the purpose of and in aid of a law forbidding the manufacture, sale, transportation, etc., of such liquor.

Those questions raised by appellant’s motion to quash which attack said law as unconstitutional, from other angles, have all been presented and discussed in the opinion of this court in Ex parte Gilmore, 228 S. W. 199.

But one bill of exceptions appears in the record, and by it complaint is made of the argument of the county attorney, in that he was permitted to argue to the jury that the state’s case was made out by proof of the fact that the liquor found in appellant’s possession was whisky. This court has often held that it may be assumed in the charge to the jury that whisky is intoxicating liquor. Branch’s Ann. P. O. § 1239, and collated authorities. This being true, we do not think the argument complained of was erroneous or injurious.

Appellant asked a peremptory instruction of not guilty, insisting that the proof failed to affirmatively show that his possession of the liquor in question was not for one of the purposes excepted by statute. Appellant himself testified that the jar of whisky found in Ms possession was liad by Mm for medicinal purposes; that a white man had given it to Mm one night about two months prior to his arrest, for helping start his car, and that he was keeping • it for medicine; that' he had not used any of it as yet; that a sack of corks found in Ms possession was taken by him out of a second hand safe recently bought by him; that certain rubber tubes, also on Ms premises when arrested, were found by him shortly before; that he did not know if the end- of the rubber tubes would fit the end of a certain copper coil also found in his house; that certain tin cans found in his possession had been carried home by him for the purpose of cutting the tops off and using them for lard cans; that a certain tin bucket which he had in his hand when arrested was used by him to carry eggs in; that a certain gasoline stove which he had in his smokehouse was used for cooking purposes. The state’s proof showed that in appellant’s possession at the time of his arrest was found a quart jar of whisky, certain copper coils, rubber piping, empty bottles, a sack of corks, a gasoline stove, and certain large empty cans, and that a certain covered tin bucket, which at the time of arrest he had in Ms manual possession, when opened, emitted so strong an odor of wMsky that same was perceptible all over the automobile in which appellant was being conveyed at the time. In addition to the ordinary charge that the burden of proof was upon the state to make out its case beyond a reasonable doubt, the jury were told that if they found from the evidence that appellant had the liquor in question in his possession for medicinal purposes, or if the jury had a reasonable doubt as to that fact, he should be acquitted. We are of opinion that the evidence sufficiently showed that appellant’s possession of the liquor in question was for an unlawful purpose.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The motion for rehearing raises no questions which were not considered in the original opinion. Believing the case was properly disposed of, the motion for rehearing will be overruled without a further discussion. 
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