Holmes v. State ( 1926 )

An automobile in the possession of the appellant was searched and found to contain 350 quarts of whiskey. The whiskey was secreted in various parts of the car which seem to have been specially constructed or arranged for that purpose. Appellant testified that his home was in Kansas but that he was living in Fort Worth in September; that he was an automobile mechanic. The car at the time was on the highway in Van Zandt County. Appellant said that the car belonged to one Hill; that it was working badly and that rather than to have a stranger work upon it, Hill came to Fort Worth and secured the services of the appellant to go and repair it. According to his testimony, appellant accompanied Hill to the car which was parked in a farmer's yard. The car was not in a running condition. It was repaired by the appellant, and at Hill's suggestion, he undertook to drive the car back. Hill and the appellant started to Fort Worth, Hill driving the car in which he and the appellant had come from Fort Worth to Van Zandt County. Hill was not present when the arrest was made. Appellant said that he did not know the car was loaded with whiskey, but knew there was some in it. He had no interest in the whiskey. He expected pay for driving the car to Fort Worth. At the time of the arrest, he admitted to the officers that the car did have some whiskey in it.

Bill No. 1 shows that the appellant objected to the testimony of the officers to the alleged facts ascertained by them in searching the automobile "because the affidavit was not properly made out and not properly sworn to." The bill is silent touching the nature of the alleged defect in the form of the affidavit. In explaining the bill the court said that the affidavit was signed by two witnesses and was irregular only in that their signatures appeared below the jurat of the officer before whom the oaths were made. The location of the signature does not necessarily vitiate the instrument. See Cyc. of Law Proc., Vol. 36, p. 449.

Bill No. 2 is to the effect that the appellant objected to the receipt in evidence of the testimony of the sheriff showing the contents of the automobile. The bill does not show more than that the objection was made. It fails to set out the objection, and in that particular is incomplete. See Mayo v. State, 7 Texas Crim. App., 349, and other cases collated in Branch's Ann. Texas, P. C., Sec. 208. See also Smith v. State, 4 Texas Crim. App., 630; Hennessey v. State, 23 Texas Crim. App., 355, and other cases collated in Branch's Ann. Texas, P. C., Sec. 209. In one of these sections it is stated that a bill of exceptions will not ordinarily be revised if it fails to set forth the objections urged, and no objection will be considered that is not stated. Another section reads thus:

"A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objections."

The remarks just made with reference to Bill No. 2 are also applicable to Bill No. 3.

It seems that when the car was first seized, there were found something over 200 quarts of whiskey. The sheriff took posses-session of the car and the whiskey. The car was put in a garage. On the next day, there were found hidden in the car an additional 140 quarts of whiskey. As we understand Bill No. 4, it reflects an objection of the appellant to the receipt in evidence of the testimony touching the 140 quarts of whiskey upon the theory that inasmuch as they were not discovered at the time and by the same officer that seized the car, it was not admissible at all. The testimony, as we understand it, does not support this view; neither does the bill. As we understand it, the officer who seized the car had a search warrant, and upon searching the car, discovered a part of the whiskey which it contained. He took possession, however, of the car and the remainder of the whiskey, though he did not know it was there. The fact that it was subsequently discovered by another officer who did not have a search warrant would not apparently militate against the receipt of his testimony in evidence.

Complaint is made of the refusal of a special charge to the effect that there could be no conviction unless the jury believed from the evidence that the appellant possessed the whiskey for the purpose of sale. This instruction was in substance embraced in the court's main charge.

The fifth paragraph of the charge reads thus:

"Now, if you believe from the evidence beyond a reasonable doubt, that the defendant possessed one quart of intoxicating liquors, or more, at the time and place charged in the indictment, but you further believe from the evidence that the defendant was in possession of the intoxicating liquors for one A. Hill, and that said intoxicating liquor was not in possession of the defendant for the purpose of sale by the defendant or the said A. Hill, or if you have a reasonable doubt as to whether the intoxicating liquor was for the purpose of sale, then you will give the defendant the benefit of such doubt and find him not guilty."

In the criticism of this charge, appellant urges that it is faulty in that it authorized his conviction if he possessed the liquor for sale or for Hill. We are unable to appreciate the force of this objection. Appellant was in possession of the whiskey and if it was for sale by him or within his knowledge for sale by Hill, his conviction would be authorized. If Hill was the owner of the whiskey, as the appellant claims, and if appellant was in possession of it for the purpose of sale for himself or for Hill, he would come within the purview of the statute which denounces the offense and would be a principal offender with Hill. See P. C., 1925, Art. 666.

We are impressed with the view that the disposition made of the case on the original hearing was correct.

The motion for rehearing is overruled.

Overruled.