Huskey v. State , 159 Tex. Crim. 557 ( 1954 )

BELCHER, Judge.

The offense is the sale of whiskey in a dry area, with prior convictions alleged to enhance the punishment; the punishment, one year in jail and a fine of $4,000.

Appellant challenges the sufficiency of the evidence to support the conviction*

The prior convictions were proven, and evidence was offered as to the dry status of the county.

Kenneth Pierce, a Texas Liquor Control Board Inspector, testified that he, Leon Bowman and James B. Cole, two other inspectors, on May 13, 1953, parked their car about fifteen feet north of the Highway Club in Nolan County; that he approached the north door, pushed a button, heard a bell ring inside, then entered a small room without windows with a heavy door with a lock about three feet from the floor and another about three feet from the top, which provided entrance into the main building. This heavy door, about “waist-high,” had a V-shaped trough about fifteen inches wide and six inches high built in it so that objects could be passed through the door. In the door was a two-way mirror. That is, to one on the outside it appeared to be a mirror and to one on the inside it was transparent.

Officer Pierce further testified that as he approached the heavy door a voice from the inside asked “ ‘What will it be?’ I told him I wanted a pint of Bourbon whiskey. He said, ‘Just a minute,’ and he was gone about sixty seconds. He said he didn’t have that but he had Old Crow and Yellowstone. I said, ‘Will it be the same price?’ and he said, ‘No, five dollars.’ I said that would be all right, I would take Old Crow. He left again and while he was gone I placed five $1 bills in the slot. I saw a hand go into the slot and get the five $1 bills and then place the whiskey in the slot. I took the whiskey out and returned to the car.” In regard to the money passed through the door, the witness said: “In the afternoon of that same day I had taken four $1 bills and copied the serial numbers off of them and placed a bluish-purple burglar powder on each side of those four $1 bills. I put them in an envelope and when the voice on the other side of the door said it would be $5, I deposited the $4 and took a dollar bill out of my billfold and placed it in the trough with the $4;” that the name of the “burglar powder” was Gentian, which will “come off on anybody’s hands who touches it,” and that is hard to remove.

He further stated that he returned to the car and “Well, we immediately returned to the door and rang the buzzer and told them we had a search warrant for the Highway 80 Club. I heard a noise which sounded like a commode flushing, and the Deputy Supervisor, Leon Bowman, went to the door and James B. Cole went to the front entrance * *

The witness said after he entered the building he met Jesse Ross McDowell and looked at his hands and no “Burglar powder” was on them; that in another room he saw appellant with “something on his hands, face and trousers that looked like burglar powder. It looked like the burglar powder after you had it on your hands. It had the same appearance.”

He further testified that only five persons were in the building, the other three being: Mrs. John Earl Huskey, Mrs. Jesse Ross McDowell and her eight-year-old daughter; that he examined the hands of each of these three and found no “powder” on them; that he looked at appellant’s hands and “He (appellant) said something about he had been putting a typewriter ribbon on a typewriter;” that he did not find a typewriter in the building. He identified a bottle of whiskey as being the same that he purchased at the heavy door of the building; that he did not see anyone leave the building after they arrived and before a search of the building was made.

Inspector Bowman testified that appellant had some “stuff” on his hands and the hands of the other persons in the building were not discolored; that he did not see anyone leave the building.

O. B. Lee, while testifying in appellant’s behalf, stated that he operated a service station and that he serviced appellant’s car late one evening about May 13; that he saw a blue substance on appellant’s hands which he thought came off of an ink pad in his station and mentioned it to appellant, who said “he must have got it on his hands from changing a typewriter ribbon;” that appellant told him the next day that the “ink” almost got him in trouble.

The evidence does not show appellant’s connection with the Highway 80 Club; no whiskey was found in the building; and the five $1 bills passed through the heavy door were not recovered.

The jury was charged upon the law of circumstantial evidence.

The state’s evidence is direct that someone sold Kenneth Pierce some whiskey and, to identify the seller, the state was required to rely upon circumstantial evidence. The presence of the appellant in the building from which the whiskey was passed through the door; the fact that some one on the inside received and disposed of the bills which were covered with Gentian or “burglar powder;” that of those present appellant alone showed evidence of having had the bills in his hands, the evidence being “hard to remove;” these facts and circumstances surrounding the transaction are, taken together, of such cogency that they exclude the connection of any other person with the transaction save appellant and the purchasing party. Scholl v. State, 156 Tex. Cr. R. 290, 235 S.W. 2d 641. In Hawkins v. State, 126 Tex. Cr. R. 111, 69 S.W. 2d 1113, we said:

“There is no evidence of probative force pointing to any other person than appellant as the seller of the liquor.”

See also Huskey v. State, 158 Tex. Cr. R. 272, 255 S.W. 2d 204.

We conclude that such evidence, when considered as a whole, excludes any other reasonable hypothesis than that of appellant’s guilt.

The judgment of the trial court is .affirmed.

Opinion approved by the Court.