Turner v. State

255 S.W. 439, 95 Tex. Crim. 593, 1923 Tex. Crim. App. LEXIS 715

• Court: Court of Criminal Appeals of Texas
• Decided: October 3, 1923
• Docket: No. 7076.
• Status: Published

Opinions

MORROW, Presiding Judge.

— Conviction is for tbe unlawful transportation of intoxicating liquor; punishment fixed at confinement in tbe penitentiary for one year.

Tbe evidence reveals tbe fact that appellant was carrying in bis automobile a gallon of corn whisky. No evidence was introduced on behalf of tbe appellant.

Tbe contention that it was incumbent upon the State to prove that tbe liquor was transported for sale is unsound. See Stringer v. State, 92 Texas Crim. Rep., 46, 241 S. W. Rep., 159; Crowley v. State, 92 Texas Crim. Rep., 103, 242 S. W. Rep., 472.

Tbe indictment contained an averment that tbe liquor was whisky and that it was intoxicating. An .additional averment that it contained more than one per cent of alcohol was unnecessary. See Estell v. State, 91 Texas Crim. Rep., 481, 240 S. W. Rep., 913.

Tbe fact that a search of appellant’s automobile was made without a search-warrant was not an impediment to proof by the officer who made tbe search that he found tbe whisky in the car. See Welchek v. State, 93 Texas Crim. Rep., 271, 247 S. W. Rep., 524.

Complaint is made of the receipt of testimony to tbe effect that appellant bad stated that be bad sold corn whisky. Tbe proof being conclusive and uncontroverted that be transported a gallon of corn whisky, and there being no defensive matter introduced and tbe minimum punishment having been assessed, tbe admission of the evidence was apparently harmless.

While a State witness was testifying, appellant made threatening gestures towards him, and the judge admonished appellant to keep his hand down and cease making demonstrations. There is some conflict between the bill and the qualification, .but the latter prevails. Under the facts, the reprimand seems to have been justified. Cyc. of Law & Proc., Vol. 12, p. 538; Corpus Juris, Vol. 16, p. 829, Secs. 2095-2100.

The court,' in the second paragraph of his main charge, instructed the jury that the burden was upon the State to prove by the evidence, beyond a reasonable doubt, that appellant ‘ ‘ did unlawfully and knowingly transport intoxicating liquors. ’ ’

After retirement, the jury submitted to the court, in writing, the following question:

•“The word ‘knowingly’ in the second part of the Court’s charge is causing much dispute and disagreement in the jury room. We note that this word does not appear in the indictment.

“Must we give this word serious consideration and look for real evidence to support this particular portion of the Court’s charge?

“Perhaps you cannot, or dare not answer, however, we would appreciate what explanation you may be permitted to give us on Clause II of the Court’s charge.”

The Court made the following reply:

“In determining whether or not an act was knowingly done, the jury may, in their discretion, as in determining any other issue in the case, consider all the facts and circumstances, if any, in evidence. ’ ’

This is criticized as fieing upon the weight of the evidence. We think the complaint is without merit. See Code of Crim. Proc., Art. 754, Vernon’s Tex. Crim. Stat., Vol. 2, p. 567;; Benavides v. State, 31 Texas Crim. App., 173; 37 Amer. Dec., 799.

The judgment is affirmed.

Affirmed.