Tucker v. State , 103 Tex. Crim. 598 ( 1926 )

The State insists that in failing to couple the law of reasonable doubt with the appellant's affirmative defense the trial court committed no error. The district attorney has prepared a motion, displaying research and ability, in which many precedents are cited and discussed, including Powell v. State, 13 S.W. 599, 28 Texas Crim. App. 398; Johnson v. State,15 S.W. 647, 29 Texas Crim. App. 150. Touching these cases and others following them, the writer has expressed his views in some detail in the case of Regittano v. State, 96 Tex. Crim. 479. As stated in that case, the apparent lack of harmony in Powell's case and Johnson's case, supra, both of which were written by the same judge, is reviewed at some length and reference made to many subsequent decisions of this court. The Regittano case, while first reversed, was ultimately affirmed. The affirmance, however, was based upon the failure of the bill of exceptions to show that proper objections had been made to the omission in the charge. From the original opinion in that case we take the following quotation:

"The law requiring a charge on the presumption of innocence and reasonable doubt is generally satisfied when the doctrine is applied by a charge referring to the whole case, that is, referring to the general issue of guilty or not guilty. * * * It has been held that it is not required that it shall be charged in every case with regard to each affirmative independent defense. * * * It is believed, however, that where, as in the instant case, the defensive theory is an affirmative one, that is, where the connection of the accused with the homicide is conceded and justified by affirmative testimony given by the accused, when the matter is properly presented in the trial court, there should be embodied in the charge submitting his defense the information to the jury that if they believe the affirmative defensive facts or have a reasonable doubt of their truth, an acquittal should result."

From the opinion on motion for rehearing the following quotation is taken:

"No exception having been taken, we need not further discuss the proposition that appellant's rights were fully protected by the general charge on reasonable doubt and the other references thereto, in said charge above mentioned."

In the present case, it is the sufficiency of the charge as against proper exception that is at issue. According to the State's testimony, upon the stopping of a train at a station, certain suit cases were put off of the train. Appellant and others who were nearby picked up the suit cases and carried them some thirty steps to an automobile. Appellant testified that he and some ladies became the guests of one Brown, who had an automobile in which they were taken out for a ride. During the ride they came to the station of Huffman, Brown stating that he was going to meet a traveling man and take him to Humble. The automobile stopped at Huffman, the train arrived, a man got off and said to the parties in the automobile: "Come over here and help us bring the baggage over." Responding to this request, and with no knowledge of the contents of the package, he assisted in conveying it to the automobile. It was later discovered that there was intoxicating liquor in the suit cases. Appellant declared in his testimony that he had no interest in the whiskey and no knowledge or intimation that the suit cases contained whiskey. It is clear that the appellant was connected with the criminal transaction. He admitted it, but gave affirmative testimony explaining it, which, if true, might have been regarded by the jury as sufficient to exculpate him. He, like other persons accused of crime, was within the purview of the statute which declares that in a criminal case the defendant is presumed to be innocent until his guilt is established by legal evidence. This presumption is as much a part of the law of the land as that upon which the prosecution is founded. The jury in the present case knew that the appellant had carried the liquor. Upon the appellant's exception and request, they should have been specifically told that if he carried it in ignorance of its presence or if they entertained a reasonable doubt as to his knowledge of its presence, he should be acquitted. The facts of the case, in our judgment, bring it within the rule in Johnson's case, supra; also Regittano's case, supra, and other cases therein cited, and cited in the original opinion.

The motion for rehearing is overruled.

Overruled.