Ames v. State , 102 Tex. Crim. 190 ( 1925 )

The appellant was indicted and convicted in the District Court of Eastland County for transporting intoxicating liquor and his punishment assessed at three years in the penitentiary.

We find in the record four bills of exception complaining of the action of the trial court as therein set out.

Bills one and two complain of the action of the court in refusing to instruct the jury to return a verdict of not guilty. We are of the opinion that the court committed no error in refusing said special charges therein contained.

Bill of exceptions No. 3 complains of the action of the court in refusing to give to the jury defendant's special charge in effect instructing the jury to find the defendant not guilty in the second count of the indictment. The court in his charge to the jury eliminated the second count in the indictment, and there could be no possible error in his refusing this special charge.

Bill of exceptions No. 4 complains of the argument of the State's attorney in stating that if a man lives in one room of a hotel he could not take liquor out of his room to another room as same would be transporting, and the jury ought to be careful and turn a criminal loose on society, and that it was the duty of the court to charge on circumstantial evidence if there was the slightest circumstantial evidence in the testimony. This bill is very meagre and does not state the circumstances or connection in which said remarks were made, and as presented does not show any error in the ruling of the court thereon.

The appellant also complains in his brief at the refusal of the court to define the term "transport." Special charge No. 1 requested by the defendant and refused by the court embraces a definition of what the term means, but said special charge does not show to have been presented to the court prior to the reading of the general charge and no exception noted or shown to the refusal of the court in failing to give said charge, and in this condition we are forced to presume that the court's action in refusing same was correct.

Appellant complains of the action of the court in overruling his motion for a new trial because it is alleged and shown that the juror Holmes was not a resident of Eastland County at the time he served as a juror in this cause. We are unable to agree with the contention made in this particular nor conclude that the court was in error in overruling said motion. We think the cases cited by the state, to-wit: Leeper v. State, 29 Tex. Crim. 63; Watson v. State, 82 Tex.Crim. Rep.; Squyres v. State, 92 Tex.Crim. Rep., are in point and hold against the contention of the appellant herein.

The appellant urges complaint against the fifth paragraph of the court's charge because it is alleged that the court should have charged the jury in connection therewith that if they had a reasonable doubt as to whether or not the defendant transported the whiskey in question they should acquit him. The court in his main charge charged on reasonable doubt, and also charged again on reasonable doubt in connection with his charge on circumstantial evidence, and we are of the opinion that there is no error committed by the court in the particular complained of.

Error is also lodged against the action of the court in not sustaining the motion to quash the jury panel because it is alleged that there was error shown pertaining to the filling of the jury wheel. This identical point was before this court in the case of Hart v. State, and was decided adversely to the appellant's contention on May 27, 1925, yet unreported, and we refer to that case for the court's holding on this point in question, and the authorities therein cited.

After a careful examination of the record, we fail to find any error committed by the trial court and are of the opinion that this case should be affirmed. We notice in the sentence of the appellant in this case that the court failed to follow the law relative to indeterminate sentences and stated that the appellant should be confined in the penitentiary for a term of "not less than three nor more than three years". We therefore reform said sentence, and the defendant is committed to the penitentiary for a term of not less than one nor more than three years. The judgment and sentence of the lower court is therefore reformed and affirmed, as herein stated.

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.

ON MOTION FOR REHEARING.