Randolph v. State , 101 Tex. Crim. 602 ( 1925 )

LATTIMORE, Judge.

From conviction in district court of Tay-lor county of possessing intoxicating liquors for the purpose of sale, with punishment fixed at two years in penitentiary, this appeal is taken.

Appellant was a Pullman porter. A Pullman car was set out by the railroad company and was in the yards at Abilene. An officer, acting upon information conveyed to him, went to appellant who was near the car mentioned, and asked him how much stuff he had in that car. Appellant replied, asking the officer what he meant, and the officer said, “liow much whisky have you got in that car?” to which appellant replied, “Well,.you have got me, Mr. Jennings, I have got it.” The officer then said to appellant that they would go and get it, and the two men walked up to the Pullman. When they reached the car the officer said to appellant, “Where is it” and appellant reached up under an upper berth and pulled down a suit case, and then reached under a lower berth and pulled out another and said that was all he had.' The officer then said, “Be sure that is all because I am going to search it, ’ ’ and thereupon appellant reached over on the other side of the aisle and pulled out another suit case and again said that was all. The officer testified that the liquor in the suit cases was Mexican whisky and that it was intoxicating. ■ No controversy is made of the fact that same was intoxicating. The facts are deemed sufficient to support the judgment.

There are two bills of exception, each seemingly complaining of substantially the same matter, that is, the conversation that took place between appellant and the officer, it being objected that appellant was under arrest and had not been legally warned, and that his statements were made in response to questions propounded to him by the officer. In his first bill of exceptions it is also made to appear that after the court had overruled the objections to the introduction of the testimony, made upon the ground above stated, appellant asked the court to instruct the jury not to consider the testimony of the officer for the reason, first, that appellant was tinder arrest and had not been warned, and, second, that the statements made by appellant to said officer were after he was under arrest and were in response to questions propounded by said officer, and that the said statements of appellant did not lead to the discovery of the whisky. There is an apparent effort in said bills of exception to draw a, legal distinction between the rules governing the statement made by appellant to the officer before they went to the car, and the statements made after the ear was entered by them. Our views in regard to same are that no error was committed' in admitting any of the testimony.

Appellant was the Pullman porter in charge of a sleeping car which ran to Abilene and was there set out on the side tracks. The Conversation that took place between appellant and the officer before they went to the car was clearly admissible because of the fact that the statements then made by appellant were found to be true and led to the finding* of the illegally possessed liquor. In such ease the fact that the accused is under arrest and unwarned, cuts no figure. After this conversation ended and appellant and the officer went to the Pullman, where appellant produced the whiskev which he had in his possession, the statements made at that time and place were admissible under the rule of res gestae. The charge was. the unlawful possession of intoxicating liquor. Appellant was then and there in possession of it. His statements were res gestae of his possession and of the transaction resulting in his being found in such possession by the ofñcer. Bes gestae statements are admissible under that rule, regardless of whether the accused be under arrest or not.

Appellant excepted to part of the court’s charge which is as follows:

“You are charged that the law provides that the possession of more than one quart of intoxicating liquors shall be prima facie evidence of the guilt of the person charged.”

The criticism of said charge is that is assumes the accused was in possession of more than a quart of intoxicating liquor, and assumes that the liquor was intoxicating, and that such charge ’ is on the weight of the evidence.. We observe that the testimony was before the court without dispute of the fact that appellant was in possession of more than a quart of intoxicating liquor, he having in fact three suit-cases or thirty-four quarts of such liquor. It is also- without dispute that the liquor was intoxicating. Said charge is not on the weight of the evidence but is in the language of the statute. We might further observe in this connection that had appellant in any way undertaken to explain his possession of such intoxicating liquor, it would have been incumbent upon the court to have given the remainder of the law passed by the Thirty-eighth Legislature on this subject, which is, in substance, that the accused has the right to rebut by testimony the presumption arising from his possession of more than a quart of liquor. • We have considered the able brief filed by appellant but do not consider any of the numerous authorities therein to hold to the contrary of what we have said.

We observe that the judgment and sentence are for a period of two years in the penitentiary. This is not in conformity with our indeterminate sentence law. Said judgment and sentence will be corrected and' reformed so as to adjudge and sentence appellant to be guilty and to be punishable by confinement in the penitentiary for not less than one nor more than two years.

Finding no error in the record, the judgment and sentence as reformed and corrected will be affirmed.

Affirmed.