Johnson v. State

42 S.W.2d 421, 118 Tex. Crim. 293, 1931 Tex. Crim. App. LEXIS 669

Opinions

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

Appellant was walking along a public street carrying a package. Officers observed him and suspected that he was carrying whisky. They stopped him, took the package from him, examined same and found it to contain a gallon of corn whisky. Appellant defended upon the proposition that as he was going along said street a boy handed the package in question to him, and that he did not know what was in it. The officers testified that when they asked appellant in regard to the package and its contents, that he informed them it contained a gallon of whisky. Appellant took the witness stand and testified that the boy referred to handed to him said package, and that he did not know what its contents were. The statement made by appellant to the officers would appear to be res gestae of his possession and transportation of the liquor in question, and admissible under that theory. Bills of exception complaining of the admission of testimony are of no avail when it appears from the record that the accused himself gave substantially the same testimony. The proposition as to whether certain liquor is intoxicating is not one which demands expert testimony.

We are not impressed by the bill of exception complaining of the fact that the court lectured another party who had been given a suspended sentence, in the presence and hearing of the jury panel. The jury trying this appellant saw fit to give him the lowest penalty for the offense charged, and nothing manifests any prejudice on their part.

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

Affirmed.

ON MOTION FOR REHEARING.