Salinas v. State , 113 Tex. Crim. 142 ( 1928 )

Conviction for transporting intoxicating liquor; punishment, four years in the penitentiary.

Itasca, in Hill county, is on the main highway running from Laredo via San Antonio and Austin to Fort Worth and points north. On the day in question a deputy sheriff at Itasca was approached by a man whom he knew, who gave him information that a certain truck was approaching Itasca from the south which was being accompanied by a blue Buick coupe occupied by a couple of men, and that the movements of the party were suspicious. This gentleman told said officer that he had followed the truck and coupe along the highway and had observed that the truck made no stops for gasoline at filling stations, but that gasoline was obtained by the occupants of the coupe at filling stations and by them supplied to the truck. Upon this information said officer applied for and obtained a search warrant, the affidavit for said search warrant appearing to us to be not in conformity with the statutes and failing to give a sufficient description of the thing or party to be searched. This however, in view of other facts in the case, we regard as immaterial to the disposition of the case. About the time the officer obtained the search warrant the truck in question came to Itasca. It was driven by one Roderiquez. The officer searched the truck and found in it twenty-eight cases of alcohol, each case containing two five-gallon cans of said liquid. Appellant was not with the truck, nor was he arrested by the officer. Roderiquez alone appeared to be in said truck. We do not deem it necessary to discuss at length complaints of the insufficience of the affidavit or the search warrant in this case. One not the owner and not in actual personal possession of a vehicle searched by the officers, in which is found intoxicating liquor, is in no position to complain at the reception of testimony as to the contents of the car. For another reason also, we think the testimony as to the contents of the car admissible, viz: that the officer had ground for believing the car engaged in transporting liquor and hence had probable cause for searching said car. Battle v. State,290 S.W. 762; Whitworth v. State, 290 S.W. 764.

There appears much complaint on the part of appellant of various rulings of the court based upon the fact that at a former time, and upon another trial of this cause, the State had elected to stand upon the first count in the indictment, said indictment containing one count charging transportation of intoxicating liquor, and a second count charging possession of such liquor for purposes of sale. Appellant made a motion to quash the indictment upon the ground that the State had elected to stand upon one of the counts only. The motion was properly overruled. To hold otherwise would at once and in every case of plural counts, — where an election was had, — give rise to the same right of the accused to demand that the indictment be quashed, and thus the commendable practice of pleading in different counts to meet the proof which might develop, would destroy itself. There is complaint of the charge of the court because it stated to the jury that there were two counts in the indictment, and of the fact that the prosecuting attorney stated to the jurors in examining them that the indictment contained two counts. We attach no importance whatever to either proposition. The indictment was a part of the proceedings, would go to the jury in their retirement, would be seen and read by them, and it was perfectly proper for the court to tell the jury, — as he did, — that there were two counts, but that the State had elected to prosecute for the count charging transportation, and that they should not consider the other count at all. We cannot conceive that the mere fact of the reading of both counts in the presentation of the case, could have inflicted any injury upon appellant. There is no sort of showing of any wrongful discussion or appropriation of such fact by the jury, or anyone connected with the case.

Bills of exception Nos. 3, 4, 5, 6 and 7 set out objections to the reception of the testimony of the officer regarding the search of the truck, and the information received by him upon which the State predicates probable cause herein. We think the evidence admissible, and do not deem it necessary to discuss either of the contentions at length. Bill of exceptions No. 8 also relates to a conversation between the officer and the persons from whom he obtained his information concerning the movements of said truck loaded with liquor. Said bill of exceptions states a question which was asked, but does not seem to set out the answer, if any, which the witness gave, upon the overruling of the objection. The bill is fully qualified, and if the answer appeared, would present no error.

Bill of exceptions No. 9 is in question and answer form, and for this reason cannot be considered.

Bills of exception Nos. 10, 11, 12 and 13 set out appellant's objections to the testimony of witnesses as to the fact that certain liquor was turned over to them by the officer who searched the truck in question, the objections to said testimony seeming to relate to the illegality of the search. For the reasons stated above, we are of opinion that no error appears. We think it perfectly proper for the parties who saw the liquor in question and examined it, to testify that same was alcohol.

Bill of exceptions No. 14 complains of the reception of testimony from a Federal customs officer in Webb county, Texas, to the effect that he found an automobile on the ranch of appellant in Webb county, and that he took it into his possession. The car referred to was shown to correspond with a car that was seen moving along the road in Hill county at or about the time of the search of the truck found loaded with alcohol and driven by Roderiquez.

Bill of exceptions No. 15 complains of the refusal of the court to permit appellant to ask one Garcia if he had not hauled tequila in that truck. The objection to the question was properly sustained. The matter inquired about did not embrace any legal charge against Garcia, and was a reference to a particular transaction deemed by appellant to be incriminating in character. Authorities are too numerous to need citation.

Bill of exceptions No. 16 complains because appellant was not permitted to have Garcia answer the question that he was put in the Hill county jail. Some doubt exists as to the propriety of the form of the question, but in as much as the witness testified positively, in another portion of his testimony, that he was put in the Hill county jail and remained there for sixteen days, we are unable to agree with appellant that any injury resulted from the sustaining of the State's objection to the question when asked. Bill No. 17 is in much the same situation. The complaint is that appellant's question on cross-examination of the witness Garcia, in reference to where he stayed while in Hillsboro, would have elicited the answer that witness stayed in jail sixteen days. As above stated, the same witness testified in another part of his evidence that he did stay in jail in Hillsboro sixteen days at said time.

Bills of exception Nos. 18, 19, 20 and 21 complain of the refusal of the court to allow certain witnesses to answer certain questions. This court is not in a position to appraise such complaints, because the expected answer of the witness does not appear in either bill.

Bill of exceptions No. 22 presents complaint of the introduction in evidence of the search warrant. Many grounds of objection appear in the bill which we deem it unnecessary to enumerate. There may be cases in which the receiving of such documents in evidence might be hurtful, but since there was no controversy in this case over the fact that the liquor referred to was found in the truck at the time and place mentioned, and since there appears nothing in said search warrant, or in the affidavit upon which same was issued, in anywise referring to appellant, and the reception of testimony regarding the search being in nowise dependent upon said search warrant, we are unable to perceive any injury to appellant in the overruling of his objections, and in allowing said search warrant to be introduced in evidence.

Complaint is made in several bills of exception of the fact that character witnesses for appellant, were asked on cross-examination by the State regarding their having heard of his possession of certain liquor in his pasture, and in reference to whether they had heard of cases against him in the Federal court for violations of the liquor law, etc. This court has always held it proper to permit cross-examination of character witnesses by the opposite party, when the question asked, if answered, would tend to affect the good faith or truth of the witnesses, or shed light upon their knowledge of the reputation of the person concerning whom they had testified. We perceive no error in any of the complaints regarding the reception of such testimony in this case.

There seems abundant testimony supporting the proposition that appellant arranged with Roderiquez to drive the truck in question from Laredo to Fort Worth, conveying a quantity of intoxicating liquor, and that appellant made the arrangements with the owner of the truck by which same could be obtained and driven by Roderiquez, also that appellant in a Buick coupe drove along the same road taken by Roderiquez, and that he was in frequent communication with Roderiquez between Laredo and the point of arrest. We deem the facts sufficient to support the verdict.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.