Harper v. State , 86 Tex. Crim. 446 ( 1919 )

Appellant was convicted and sentenced in the Criminal District Court of Dallas County, to one year in the penitentiary, for the offense of having in his possession certain intoxicating liquor at a public place in Dallas County, the same being territory where the sale of such liquor was prohibited under the Constitution and laws of Texas.

The indictment contains four counts, only one of which was submitted to the jury, said counts substantially charging that in said dry territory, appellant did then and there unlawfully have and keep in his possession certain intoxicating liquor, to-wit, whisky, in a public place, to-wit, in and around the railroad station of the town of Rowlett, Texas, the same being a public place, etc.

Appellant's first contention herein is that the evidence does not support the verdict. We think the evidence abundantly shows that appellant got off the train at Rowlett, five or six miles distant from Dallas, Texas, with two grips, in which were thirty pints of whisky, and that the place where he had said whisky was a public place, such as comes within the terms of Section 3, Chapter 31, Acts of the Fourth Called Session of the Thirty-fifth Legislature. No contention is made but that this was within territory commonly known as "local option" territory, and it was admitted by all parties that the sale of liquor had been therein forbidden.

We think the State's proof abundantly shows that appellant's purpose in bringing the liquor to Rowlett, and in getting off the train there, was to evade probable arrest for the bringing of same in the city of Dallas. It was shown that a couple of days before his arrest, he was in the town of Garland, and was heard to say to some one: "Crank up your car. I am coming in on the Flyer this evening, and I want to see if one of these damned officers can catch me or not." That he bought a ticket that day and went to some point in Louisiana, where he procured the two grips full of liquor and returned to Rowlett. When the train arrived, the officers were watching for him, and saw him get off the train at the east end of the depot and cross over the public road to some stores. They there accosted him and asked him what he had in the grips, and he demanded to know if they had a warrant for him. When they told him they had not, he refused to let them see the contents of the grips. They investigated one of the grips, and found it to contain whisky in pint bottles, and proceeded to carry him to Garland, where there was a magistrate. When they reached Garland, he objected to their investigating the smaller grip, claiming that there was nothing in it but tools; but its contents were also found to be whisky.

Appellant took the stand and swore that he had been a bartender in Dallas before the town went dry, and that he wanted to get and got the whisky in question for his own use, and was on his way home from Louisiana with it; that he merely got off the train at Rowlett to see a friend whom he had heard was very sick; that he had seen this friend for several years.

The claim made by appellant that he got off the train a short way back from the depot, and from there walked across to the stores, and that where he got off said train was not a public place, does not seem to us worthy of consideration.

The State's witnesses testified that the place where he was with the liquor, was one to which people resorted for the purposes of business and boarding trains, etc., and we do not think there is anything in the contention. Rowlett was not his home, nor was the depot, the stores, or the road his home in any sense, nor did he so claim.

Complaint is made of various matters occurring at the trial, but no bills of exception were reserved to any of them, and we are, therefore, not at liberty to consider same. But one objection was made to the charge of the trial court, same being on the ground that the court failed to define a public place, but an inspection of the charge shows that the court instructed the jury that before appellant could be convicted, he must have had said liquor in his possession at or around the depot at Rowlett, and that they must find that same was a place to which persons resorted for the purpose of business, and boarding trains for the purpose of transportation, etc. We think this was a sufficient definition of a public place in said charge. Nor do we think the court erred in refusing special charge No. 2, asked by appellant. It is not necessary, in order to make one guilty, unded this statute, that he intends to remain in the place where he is charged to have had such intoxicating liquor.

In Ex parte Fulton, (No. 5337), 86 Tex.Crim. Rep.. 215 S.W. Rep., 331, an opinion recently handed down by this Court, we upheld the constitutionality of this statute, and reference is made to said opinion for the authorities and reasoning at length. We do not think said statute is in conflict with the Webb-Kenyon Act.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. January 21, 1920.