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NATHAN PENNINGTON v. STATE (12/18/57)

decided: December 18, 1957.

NATHAN PENNINGTON
v.
STATE



Sale of Whisky on Sunday. Appeal from County Court at Law of Potter County; penalty, fine of $500.00 and thirty days in jail. Hon. Mary Lou Robinson, Judge Presiding.

COUNSEL

No attorney for appellant of record on appeal.

Leon Douglas, State's Attorney, Austin, for the state.

Davidson, Judge.

Author: Davidson

[ 165 Tex. Crim. Page 409]

    This is a conviction for violating the liquor laws, with punishment assessed at a fine of $500 and thirty days in jail. The information charged that appellant delivered to Aaron Ross, whisky on Sunday -- which act is made unlawful by Art. 666-25, Vernon's P.C.

The sole question presented for review is the action of the trial court in overruling the motion to quash the complaint upon which the information was predicated in that it was made only upon information and belief. In other words, it was appellant's contention that when the complaint was filed it did not contain the words "and does believe" in connection with the words "good reason to believe."

A complaint which alleges only that the affiant has good reason to believe is not sufficient, and we have repeatedly so held.

The trial court heard evidence in support of appellant's motion, which has been brought here by a statement of facts and which is conflicting.

There was evidence sufficient to show that the complaint, when filed, did contain the words "and does believe."

In the exercise of his discretion, the trial court was authorized to accept that testimony and base his conclusion thereon. This he appears to have done, and we cannot say that he abused his discretion.

The judgment is ...


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