Gordon v. State

212 S.W.2d 185, 152 Tex. Crim. 188, 1948 Tex. Crim. App. LEXIS 1249

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 1948
• Docket: No. 23970.
• Status: Published

Opinions

Appellant was charged with and convicted of the offense of unlawfully transporting whiskey in a dry area and his punishment was assessed at a fine of Three Hundred Dollars.

The record shows that the sheriff of Floyd County was informed by a credible person that appellant would come into the county about midnight on May 6th, 1947, with a load of whiskey. The informant gave the sheriff a description of the truck and the license number. The sheriff, accompanied by a liquor control agent, went out on the mentioned highway and when appellant came along, he stopped him, searched the truck, and found fifteen bottles of whiskey, each containing four-fifths of a quart.

Appellant testified that he had purchased three bottles of the whiskey for his mother-in-law who lived with him; that she had sustained a severe back injury; that she was under the treatment of Dr. Smith who had administered to her morphine and amytal; that the doctor advised him that morphine and amytal were habit-forming drugs and they had to get her off the drugs; that instead of giving her such drugs to induce sleep and rest, they should give her a strong toddy which would likely produce the same result; that in compliance with the doctor's instructions, he obtained three of the bottles of whiskey in question for that purpose. He further testified that he purchased and was transporting the other twelve bottles of whiskey in question for Mr. McReynolds who had theretofore given him Fifty Dollars with which to purchase whiskey and bring it to him for the use of McReynold's mother-in-law who was also ill and for whom the doctor had prescribed whiskey. Appellant was corroborated by both Dr. Smith and McReynolds. At the conclusion of all the evidence, the State moved the court to withdraw from the jury all of the testimony of appellant, Dr. Smith, and McReynolds with reference to the physical conditions of the ladies, namely appellant's mother-in-law and the mother-in-law of McReynolds. The court granted the motion and withdrew the testimony to which appellant objected. It will be noted that when the court withdrew from the jury the testimony given by said witnesses, it stripped him of every vestige of a defense. As a result of the court's action, the question arises whether or not the court was justified in his ruling.

We are of the opinion that even though appellant violated the law by transporting the twelve bottles of whiskey for the use of Mrs. Summers, the mother-in-law of McReynolds, he was still entitled to have the jury take into consideration the excluded testimony in determining the punishment to be assessed. If the jury believed the testimony of appellant and his witnesses, they might have assessed a lower punishment than they did. Appellant was entitled to have the jury consider such testimony for the purposes herein indicated.

What we have said here disposes of his objections to the court's charge based on the ground that the court failed to affirmatively present his defense. If his testimony had raised any legal defense, his contention would be tenable. However, a mere objection to the court's charge in a misdemeanor case is not sufficient. He must prepare and submit a correct charge on the subject. See Hall v. State, 102 Tex.Crim. R..

We think that under the facts of this case he was entitled to prove his reputation for truth and veracity.

From what we have said it follows that the judgment of the trial court should be reversed and the cause remanded and it is so ordered.

Opinion approved by the Court.

ON STATE'S MOTION FOR REHEARING.