McCullough v. State , 127 Tex. Crim. 123 ( 1934 )

In his motion for rehearing appellant insists that the evidence is not sufficient to show him guilty of transporting whisky, and he refers us to Richardson v. State, 89 Tex. Crim. 17, and Walling v. State, 94 Tex.Crim. Rep., as supporting his contention that he was merely a guest, riding in the car with one Wilson, when the officers stopped them and found whisky in said car. In Walling's case, supra, the State's witness, upon whom reliance was had for making out the State's case, testified that after the liquor was put in the car Walling was invited to ride therein, and that he knew nothing of the presence of such liquor which was not exposed to view. In Richardson's case, supra, it was developed that appellant claimed to have no connection with the liquor found in the car, and the State failed to use as witnesses, to combat this claim, other persons shown to have been in the car. In Woytek v. State,100 Tex. Crim. 122, it appears that the accused swore, as in the case before us, — that he was a guest in the car, and that he thought the contents of the box found upon search to contain whisky, — was eggs. We held the circumstances sufficient to justify the jury in concluding appellant a principal offender in the transportation of the liquor.

In the case before us it was in evidence that appellant dealt in liquor; that his reputation for truth and veracity was bad; that on a former occasion he and this same Wilson came along this same road with whisky in a car, and that appellant pleaded guilty to such transportation. The facts admitted by appellant as a witness were that he and Wilson went down in "The big woods." Wilson left appellant at the car and came back later. Appellant said he was asleep when Wilson came back; that Wilson woke him up and said "We are ready to go." The sheriff swore that he saw the car coming; it stopped when a short distance up the road. The car was a coupe, with a place up back of the seat to put things in. The door of the car was opened and a half gallon of whisky was observed by the sheriff sitting up back of the seat. Another half gallon was between appellant's legs in the car. Eleven gallons of whisky were in the back of the car. There is nothing to show any disclaimer on the part of appellant when arrested. The man Wilson made no claim that the whisky was his. The court properly submitted the case on the law of principals. We think the jury were justified in their verdict.

The motion for rehearing is overruled.

Overruled.