Lovell v. State

60 S.W.2d 208, 123 Tex. Crim. 619, 1933 Tex. Crim. App. LEXIS 314

• Court: Court of Criminal Appeals of Texas
• Decided: March 22, 1933
• Docket: No. 15719
• Status: Published

Opinions

LATTIMORE, JUDGE.

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

Officers went to the premises of George Dry, who from the facts in this case seems to be very wet, and hid themselves in a shed. They saw appellant, with a tow sack under his arm, come-to the place. There was a little room built on the house of Mr. Dry. Appellant walked up to this room, opened the door and went in. The officers heard bottles rattling. Appellant came, out with the sack in his hand and started off. When he had gone about thirty feet the officers stopped him, asked him for the sack, which was found to contain twelve bottles of beer, testified to without contradiction as being intoxicating. Appellant told them it was his beer. He went back to the little room, with them where a quantity of beer was found, and also equipment such as a siphon and capper for putting it up in bottles.

Appellant introduced several witnesses who testified that they had bought beer from Mr. Dry at this same place. He then put his wife on the stand who swore that a doctor had told her beer would be good for her, and that on the day of appellant’s arrest she asked him to get some beer for her, and he left for Mr. Dry’s place to get it. She testified that some one had said that Mr. Dry had beer. She further testified that she-had never sent him for beer before. Appellant also put on the stand a doctor who swore, among other things, that he told appellant’s wife as follows: “I told her she could drink beer, and it wouldn’t hurt her, I didn’t think.” He said he gave her no directions as to what kind of beer, just beer; but he wanted her to drink home-brew. He gave her other medicine.

Appellant then put on the witness stand Mrs. George Dry, who made him a good witness on direct examination, going so far as to swear that the officers arrested appellant in the little room where the ice box was; that he had not moved with the beer. On cross-examination, however, she swore that all the beer in the ice box at their house was partnership beer between her husband, appellant, and his son; that they had been putting up their beer there about three weeks; that to the best of her recollection appellant had made three or four trips during that time, and each time he would get beer and carry it away. She said the ice box (where the beer was) was locked, and, “If any other party had a key to the ice box except Will Lovell, I do not know it.” She further testified: “There were four jugs of beer around there that they had at that time. Two belonged to George and two belonged to the Lovells. Nobody else was interested in the beer except the Lovells and George Dry.” This witness thus completely made out against appellant the state’s case, in addition to the case already made by the state witnesses. Appellant did not testify. The evidence was ample to support the conviction for transportation of intoxicating liquor. Where appellant was going with the liquor when stopped by the officers we do not know, but he had already started on a journey to some place away from the Drys.

We do not quite understand appellant’s theory of this case. The liquor may have belonged, in part, to the Drys, who, as stated above, appear to have been all wet, but part ownership in the Drys would not have justified appellant in the transportation of the liquor. The court submitted to the jury in a proper charge the theory that if he was transporting liquor for the purpose of using it as medicine for his wife, he should be acquitted, but the jury found against this plea.

Appellant has twenty-one bills of exception, each of which has been examined but which will not be discussed seriatim. What was said by appellant, and done by the officers at the time of his arrest, was part of the res gestae. The mention of appellant’s failure to testify by a member of the jury, was shown by the testimony of all the jurors to have been but a casual reference, and was not discussed. The indictment was not subject to exception, nor could the state be required to elect in advance of the close of its testimony. The testimony objected to by appellant was all admissible.

No error appearing, the judgment will be affirmed.

Affirmed.