Ard v. State , 101 Tex. Crim. 545 ( 1925 )

The appellant was charged in the Criminal District Court of Tarrant County with unlawfully possessing equipment and devices for the manufacturing of intoxicating liquors, and convicted and her punishment assessed at one year's confinement in the penitentiary.

Briefly stated, the record discloses the facts to be that the officers searched the house and premises of the appellant and found shut up in a small room three and one-half barrels of mash in a fermenting condition and a still at the time she was away from home but she returned within an hour thereafter in a car with one J. D. Atkinson; that when she returned, the officers arrested her and at the time of the arrest or immediately thereafter, while the officer was preparing to arrest Atkinson, the appellant stated to the officers that the mash and still in question belonged to her and that Atkinson didn't have anything to do with it. This was the testimony of the State, while the appellant denied making the statements to the officers as above set out but admitted that she told the officers that Atkinson didn't have anything to do with it and it was her contention and evidence upon the trial that one Edna May Chambers had placed the still and ingredients in her house while she was absent that day and that she knew nothing about it until she returned. The above statement of the facts is sufficient for the purposes of this opinion.

The appellant contends that the court was in error in permitting the officer Rhodes to testify to the statements above made to him by said appellant, as shown by her bill of exception because said appellant was under arrest and because, "It was not a confession, not a written contract and not admissible for any purpose." The court in allowing said bill stated that it was offered at a part of the res gestae. The bill within itself is insufficient as urged by the appellant to show that it was not a res gestae statement and this court has repeatedly held that it will not search the record for errors and that the bill must be sufficiently full to show the error complained of to entitle it to consideration by this court. Cavanar v. State, 269 S.W. 1063; Branch Ann. P. C. Sec. 209. Furthermore, we think that there is no error in the action of the court in permitting this testimony because this court has repeatedly held under similar circumstances that such statements were a part of the res gestae and admissible, Bell v. State, 243 S.W. 1095; Copeland v. State, 249 S.W. 495; Coburn v. State, 255 S.W. 613; Rayburn v. State,255 S.W. 436; Odneal v. State, No. 8813, rendered by this court June 10, 1925, yet unreported.

In bill of exception No. 2, complaint is urged to the action of the court in permitting the witness, Joe Trickey, to testify that when the still was being brought in court, that the appellant remarked "that sure looks familiar" because said defendant was under arrest and was not binding upon her. The court in qualifying said bill states that the defendant was not under arrest but was under bond at said time. The appellant having accepted the bill with the qualification thereon becomes bound thereby and said bill in our opinion shows no error of the court in permitting the testimony. The State's theory, of course, was that the still in question belonged to the appellant and any statement made by her that would tend to show that she owned it or was familiar with it would be made admissible against her unless she was under arrest at the time same was made. We think the objection goes more to the weight of the testimony than to the admissibility of same.

Bill of exception No. 3 complains of the district attorney asking the appellant while she was upon the witness stand:

"Now how long have you been living with this Singleton boy?"

This bill does not give any answer of said witness to said question and is wholly insufficient to show any error complained of, or how the defendant was prejudiced thereby. What has been said heretofore in this opinion relative to bills being insufficient applies to this bill.

Complaint is urged in bill of exception No. 4 to the State through her attorneys asking the defendant while on the stand in substance to the effect if she didn't in October, 1923, when confronted with being charged with having a still at that time, if the said Atkinson didn't take the blame for that still and let her, appellant, out because he was under the age of 25 and probably could get a suspended sentence. This bill does not show the answer of the appellant except through the qualification of the court thereto which states, that the witness answered same in the negative. We fail to see any error in this particular and overrule the contention of the appellant therein.

In bill of exception No. 5 complaint is made to the action of the attorney for the State in asking the defendant while upon the stand if she didn't persuade the said Atkinson to take the blame for that still, referring to another still, and the whiskey out there, consisting of six or eight gallons. This bill shows no answer to said question, and is a recitation of a colloquy between counsel and the court and objections to statements made therein. This bill fails to disclose any error, and is insufficient. Alley v. State, 92 Tex.Crim. Rep.,241 S.W. 1024.

Bill of exception No. 6 complains of the court's charge, but same is insufficient to show any error therein and what has been said about insufficiency of bills herein applies to this bill.

Bill of exception No. 7 complains at the court's failing to instruct the verdict in the case in behalf of the appellant. We think that the court committed no error in refusing this special charge.

Bill of exception No. 8, complains of the action of the court in refusing to charge on circumstantial evidence. We are of the opinion that this case as disclosed by the record raises no issue authorizing the court to submit a charge on circumstantial evidence.

After a careful examination of the record, we are of the opinion that there was no error committed by the trial court and that this case should be affirmed, and it is accordingly so ordered.

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.