Goss v. State

59 S.W.2d 379, 123 Tex. Crim. 494, 1933 Tex. Crim. App. LEXIS 257

Opinions

LATTIMORE, Judge.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

As we view the record, it would have been a matter of practical impossibility for the state to have made the election between transactions, demanded by appellant. Two officers who raided testified that they found a large still with all of the accompanying paraphernalia, material, etc., but they saw no one at the still when they were there on November 22nd. State witness Earl Thornton was an accomplice, and his testimony related to no particular transaction, except he stated that appellant put the still out on the Wylie ranch in June and kept it there until the raid, with the knowledge and consent of witness who had charge of said ranch. He testified to no particular date or transaction. The state witness Hinson testified that he was out at the place some time near the date of the raid and saw appellant carrying water in and whisky out. He did not swear that he saw the still in operation at the time he saw appellant there, and the jury may also have concluded, under the instructions given by the court, that he was an accomplice. State witness Luther Thornton was the only other witness who swore to specific incriminating facts, and he said he remembered the occasion of the raid mentioned, and that he was at the place a few days before, and saw appellant who asked him if he would like to see the still, and showed it to him, but did not show him how it operated, nor tell him to whom it belonged. We find ourselves at an entire loss to know under facts like these how the court could have selected a given transaction and directed the jury’s attention to this, or how the jury could have made an election between transactions.

No such penalty was given appellant as would indicate confusion, or possibility of conviction for more than one offense. No special charge was asked by appellant pointing out any particular transactions between which he desired that an election be made. As above stated, we regard it as extremely doubtful if either the court or the jury could have responded to the request for an election. We think no error appears in the refusal of the trial court to require an election.

The only other bill of exception complains of the fact that the jury used a dictionary in their retirement in order to know what the word “anterior” meant. The word appeared in the charge of the court. The reason why some understanding of said word was deemed necessary by the jury is set out fully in the record, but nothing suggests the use of dictionary for any other or further purpose, and it appears to us too great a stretch of the imagination without support in proof to cause us to believe that this was such misconduct of the jury as to-call for a reversal of the judgment. We say this without intent, to criticise the civil authorities cited by appellant.

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

Affirmed.