Ragsdale v. State , 126 Tex. Crim. 538 ( 1934 )

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Ireland Hubert, Garland Futch, and appellant, accompanied by two young ladies, left Coleman about eight o'clock on the night of August 24, 1932, and drove to a dance in Talpa, which is in Coleman County. While they were driving in Coleman County there was some whisky in the car. It appears that the automobile had been furnished by Ireland Hubert, and that he drove the car to the dance, but that appellant drove it at some time on the trip. After the parties had gone to the dance they drove into Runnels County, where the car was wrecked and Garland Futch killed. The testimony of the State was to the effect that when witnesses went to the place of the wreck they detected the odor of whisky about the automobile, and that appellant was intoxicated. Witnesses for appellant testified that there was no odor of whisky about the car, and that appellant was not intoxicated.

Touching the trip from Coleman to the dance on the night of the 24th, appellant testified, on cross-examination, as follows: "As to when I saw this boy carrying a sack back, — that was about 8:30 on the 24th. They put that sack and whatever it contained in the car and drove toward Talpa. You say that before we got to Valera we stopped and took a drink of whisky out of a half-gallon fruit jar, but we did not, we drank out of a glass. I don't know if that whisky was poured out of a jar or not. It was in a glass when I first saw it. You say after that jar was placed in the car that we drove back toward Talpa stopping several times and drinking from this glass jar, but I did not drink from the jar. I drank twice but I drank from the glass. * * * You ask me if while we were at Talpa we returned to the car and got a drink from this same half-gallon fruit jar, but I don't know if that was the same whisky and the same jar or not. We did get a drink of whisky from a fruit jar out of that car once or twice during the dance. About midnight we all got into the car and drove back to Coleman and we took Miss Modena Pierce home and then the rest of us drove around town until morning."

On his re-direct examination appellant testified as follows: "I heard the district attorney ask me about bringing something in a sack and putting it in the car, but I did not have anything to do with bringing something in a sack and putting it in the car. Garland Futch did that. I did not insist on his doing that. * * * I did not have anything to do with that or anything else that was in the car."

It appears that Talpa and Valera are in the county of Coleman.

Bills of exception 3 and 4 relate to the action of the court in permitting the district attorney to show State's witness Irma Thompson a statement she had theretofore made before the grand jury and ask her if she did not make certain statements when she appeared before the grand jury. The effect of the court's qualification to the bill is that when the witness had stated that she did not remember certain things her memory was refreshed by calling her attention to the statements she had made in the grand jury room. A witness has a right to refresh his memory from his testimony given before the grand jury. Branch's Annotated Penal Code, sec. 160; Spangler v. State,55 S.W. 326; McLin v. State, 90 S.W. 1107. The court approves the bill with the qualification that the statment was not introduced in evidence. We think the bills fail to reflect error.

Bill of exception No. 2 relates to appellant's objection to testimony to the effect that the car in which appellant and his companions were riding was wrecked in Runnels County and one of the occupants, Garland Futch, killed. We are unable to reach the conclusion that this testimony was inadmissible. From the time the parties left Coleman County until the wreck they were on a continuous trip. The wreck occurred in Runnels County near the line between Coleman and Runnels Counties. Witnesses testified to going to the scene of the wreck and detecting the odor of whisky about the car. Moreover, they testified that appellant was intoxicated. At least some of the details of the wreck were properly admitted on the question as to whether appellant was guilty of transporting intoxicating liquor. If it was improper to receive testimony that Futch was killed, we are unable to perceive how its reception could have prejudiced appellant. He had filed no application for a suspended sentence. According to his own testimony, there was whisky in the car during the time it was being driven in Coleman County and he and the other occupants of the automobile drank some of the whisky. The court submitted the case on the theory of principals. Appellant's testimony supported the conclusion that he was a principal in the transportation of the liquor. He received the minimum penalty. Under all of the circumstances reflected by the record, if it should be held improper to have proved the death of Futch, we deem the error to have been harmless.

Appellant brings forward several bills of exception in which he complains of the refusal of the trial court to permit him to prove that he had been tried in Runnels County for driving an automobile while intoxicated (this being the occasion upon which the wreck was had) and acquitted. The court's qualification to one of the bills of exception in question reveals the fact that the witness Hensley testified, without objection on the part of the State, that appellant was acquitted in Ballinger on the charge to which reference has been made. In this condition of the record, the bills of exception fail to reflect reversible error.

We have not undertaken to discuss all of the bills of exception found in the record. However, after a careful examination of all of appellant's contentions, we entertain the view that reversible error is not presented.

The judgment is affirmed.

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