Jaggers v. State , 104 Tex. Crim. 174 ( 1926 )

The appellant was convicted in the District Court of Knox County for unlawfully transporting intoxicating liquor, and his punishment assessed at five years in the penitentiary.

It was the contention of the State in this case that the appellant and one Donnegan were together and guilty of unlawfully transporting about forty gallons of whiskey in an automobile, in Knox County, at the time of having a collision with the occupants of another car. The appellant contended, and introduced evidence to the effect that he was not in Knox County at the time in question, knew nothing of said collision, and had no interest in said whiskey.

The appellant has not favored us with a brief, but the record discloses five bills of exceptions. Bill of exception No. 1 complains of the refusal of the court to give the jury appellant's special charge to the effect that unless they believed that the defendant had some guilty connection with the transportation of the intoxicating liquor, in Knox County, to acquit him. We are of the opinion that there is no merit in this contention, as the court in his general charge instructed the jury that if they had a reasonable doubt as to the presence of the defendant at the time and place where the offense was alleged to have been committed, to acquit him. The indictment charges the offense in Knox County, and we believe the court's charge sufficiently covered the issue presented in said special charge, and there was no error in refusing to give same.

Bill of exception 2 complains of the action of the court in refusing to charge the jury that Donnegan was an accomplice, and that they could not convict the defendant upon his testimony alone. Art. 670 of the new Penal Code, which was in force at the time of this trial, specifically states that the purchaser, transporter or possessor of intoxicating liquors shall not be held in law or fact to be accomplices, and no other reason for asserting that said witness was an accomplice is set up in the bill. The testimony of the State; if believed, showed clearly that the witness Donnegan and the appellant were transporting whiskey at the time and place alleged in the indictment. Under said Article, supra, we are of the opinion that the court committed no error in refusing to submit this charge.

Bill 3 complains of the action of the court in defining in his general charge who are principals. This bill as presented shows no error in this particular.

Bill 4 complains of the action of the court in permitting the district attorney to prove by the sheriff that a cap was found in the car alleged to have been occupied by the appellant and the witness Donnegan at the time of the collision, because appellant contends it was not shown that he had any connection with same. The record discloses that the State's witnesses testified that after the collision the appellant walked off from the car bareheaded. We fail to observe any error in admitting this testimony, and are of the opinion that same was admissible as a circumstance connecting the defendant with the alleged offense.

Bill 5 complains of the action of the court in permitting the witness Donnegan to testify that appellant told him there were 42 gallons of whiskey in the car in question. This bill as presented shows no error in the action of the court in admitting this testimony. After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the Court.

Morrow, Presiding Judge, absent.

ON MOTION FOR REHEARING.