Morrison v. State

336 S.W.2d 173, 169 Tex. Crim. 556, 1960 Tex. Crim. App. LEXIS 3020

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 1960
• Docket: 31675
• Status: Published

Opinions

WOODLEY, Judge

The offense is transporting whisky in a dry area; the punishment, 90 days in jail and a fine of $400.

It was stipulated that Hockley County was a dry area and that appellant had been convicted in 1950, as alleged in the information, for possessing whisky in a dry area for the purpose of sale.

Two grounds for reversal are presented by appellant’s brief.

The first relates to the prior conviction which is complained of as being too remote.

The authorities cited by appellant have no application where, as here, the prior conviction is alleged for the purpose of obtaining an enhanced punishment under the provisions of Arts. 61, 62 and 63 P.C.

In Wesley v. State, 149 Tex. Cr. R. 650, 198 S.W. 2d 103, this court, speaking through Presiding Judge Hawkins whose memory we revere, said: “Appellant cites us no authority, and we are not aware of any, that the question of remoteness applies when proof of former conviction arises in the application of Art. 63 P.C.” The same is necessarily true as to Art. 61 P.C.

The second ground for reversal is the contention that the evidence is insufficient to sustain the jury’s finding that appellant transported whisky.

Sheriff Clem testified that two blocks from the courthouse he saw appellant, who was driving an automobile traveling in the same direction some 100 years ahead of him, drive into the driveway of a residence; that appellant got out of his car with a brown paper bag with something in it in his hand and walked up on the porch and knocked at the door; that appellant entered the house; that one George, who occupied the house, came to the door and with his consent the sheriff entered, searched the house and found a brown paper bag containing a fifth of whisky under some mops and brooms behind the stove in the northeast corner of the house.

Appellant and the occupant of the house were present during the search, as was Special Investigator Sid Johnson who was riding with Sheriff Clem.

Sheriff Clem testified that the paper bag in which the whisky was found was similar to and looked just like “the package” that he saw appellant carrying, and that no other paper bag was found in the house.

The witness Sid Johnson gave similar testimony.

Appellant did not testify, nor did the occupant of the house who, the evidence shows, was in itinerant cook.

While the evidence was circumstantial, when viewed in the light most favorable to the verdict it is deemed sufficient to sustain the jury’s finding.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING