Sims v. State , 96 Tex. Crim. 519 ( 1923 )

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant and one Dave Porter were traveling along a public road in a wagon containing a still, several barrels and three gallons of whisky.

The offense was laid on or about August 18, 1922. The proof showed, without contradiction, that about that date the appellant conveyed in his wagon several gallons of whisky, a still, several barrels and other equipment suitable for the manufacture of whisky. The conveyance was made from the home of the witness Porter, which was on the so-called Chapman Place, several miles from the city of Henrietta. The articles were brought by appellant to the city of Henrietta late in the night-time.

In his testimony appellant disclaimed any knowledge of the fact that the packages contained whisky, and claimed that he had been hired by Porter to transport the articles mentioned.

Porter testified that the property belonged to appellant and that through appellant's influence he became engaged with him in the illicit manufacture of whisky.

On cross-examination appellant testified that on a previous occasion he had gone to the abode of Porter, when he resided in a different locality though in the same county, and had obtained from him a gallon of whisky, also smaller amounts and had transported them to his home some fifteen miles distant; that at that time he was aware that Porter was engaged in the illicit manufacture of whisky. Objection to this cross-examination was made, but the bills are in question and answer form and for that reason are not in a condition to require consideration. If considered, however, they are deemed without merit. By his own testimony appellant made relevant testimony which would show his guilty knowledge of the unlawful nature such issue his previous acquaintance with Porter and the nature of of the liquid which he transported from the Chapman Place, and upon transaction with him was competent.

The fact that the State proved more than one occasion on which appellant transported intoxicating liquors was not within the rule rejecting evidence of other offenses. Either transaction was available to the State. It having introduced evidence of more than one, might have required an election by it if a demand for it had been made. The contention that the evidence was incompetent because not shown to have fallen within the period of limitation cannot be sustained for the reason that, as above indicated, the evidence was admissible on the issue of appellant's guilty knowledge. Its receipt was admissible for the additional reason that from Porter's testimony touching the time he moved into the community and appellant's testimony that the transaction was subsequent to such removal, there is evidence which would authorize a finding that both transactions occurred within the limitation period.

In the motion for new trial the point is made that in their deliberations the jury considered both transactions. No reason is perceived why they should not have done so. The evidence of both was competent, and there was no demand made upon the State to elect between them.

We will add, however, that it was not permissible to impeach the verdict of the jury by testimony of jurors showing what use was made of testimony legally before them. Such an inquiry is not within the scope of the statute on misconduct of the jury. Turner v. State, 61 Tex.Crim. Rep.; Watson v. State,82 Tex. Crim. 305; Bridges v. State, 88 Tex.Crim. Rep.; Todd v. State, 93 Tex.Crim. Rep., 248 S.W. Rep., 693.

The bill complaining of the remark of counsel for the State to the effect that if appellant was convicted Porter would be tried on the following day, as qualified, shows that the remark was invited by the argument of appellant's counsel.

The judgment is affirmed.

Affirmed.

ON REHEARING. February 13, 1924.