McChristy v. State , 139 Tex. Crim. 548 ( 1940 )

GRAVES, Judge.

The offense charged is possession of beer for the purpose of sale in a dry area, and punishment fixed at a fine of $150.00.

The "recognizance in this cause is an exact counterpart in the undertaking portion thereof as the one set forth in our cause No. 20946, I. B. Burns, Sr. v. State, this day decided, (page 267 of this volume) and is defective in the same particulars as set forth in that cause.

For the reasons therein stated this appeal is dismissed.

ON APPELLANT’S motion to reinstate the appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Peace officers located three cases of beer in a vacant barn, and were watching the bam. About 3 o’clock in the morning on the date of the alleged offense appellant and I. B. Burns, Jr., came into the yard in a car, turned out their lights and drove up to the barn, and the officers told them to put up their hands. Appellant was told to open the door to the barn. Appellant tried some of the keys he had and finally said he had lost the key. Appellant then threw something away and an officer struck him over the head with a pistol. Bums came up and said, “I have a key.” Bums unlocked the door and the officers took possession of three cases of beer which were in the barn, — 72 cans of 12 ounces each.

Appellant testified that he and Burns were driving around visiting different inns on the night in question, and finally, after having gone in swimming, they started home and went by the place where the beer was located. Both of them went over to get a case of beer. Appellant testified, further, that it was not his beer and that he did not have a key to the barn. It was his further version that he did not know the beer was there.

We deem the evidence sufficient to support the judgment of conviction.

Bill of exception No. 1 complains because of the fact that appellant was forced to trial with only three jurors selected by the jury commission. The bill further- recites that appellant had been tried twice before- with -the same jury panel, for an offense of like character. The court’s qualification to the bill is as follows: “That there were on hand a-jury picked up by a jury commission, but it was necessary to send the sheriff out to pick up some additional talesmen to fill out the panel, and the jury acquitted the defendant in' the other cases, and there was no connection between those cases and 'this one; they were, at different times and different places, and most of the witnesses were different.” As qualified, the bill of exception fails to reflect error.

The remaining bills of exception relate to the court’s charge and objections thereto. We do not understand the bills to show that appellant filed written exceptions to the charge of the court. It might be added that it appears that no requested charges covering the subjects appellant claimed were omitted from the charge were presented to the trial court. This being a misdemeanor, the requested instructions should have been presented to the court. See Steele v. State, 117 S. W. (2d) 74.

The judgment is 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.