Scott v. State , 170 Tex. Crim. 384 ( 1960 )

DAVIDSON, Judge.

This is a transportation-of-whisky conviction, with punishment assessed at a fine of $250 and six months in jail.

A highway patrolman accosted appellant while driving an automobile and requested permission to search the trunk of the car. Appellant consented to the search, but explained that the car was not his, that it did not belong to him.

A search of the trunk of the car revealed a large quantity of wine and whisky.

A passenger was in the car with appellant at the time. Both of them were taken to jail. At that time the passenger confided to the officer that the liquor belonged to him and that, at first, he had been driving the car.

The foregoing is taken from the testimony of the patrolman.

The testimony of the witness Gonzales, given in behalf of the appellant, was to the effect that he (Gonzales) was in charge of the car; that he had purchased the liquor in Amarillo; that appellant only became connected with the driving of the car when he, Gonzales, asked him to assist in starting the motor after the car “went dead” on the street; that appellant was behind the wheel when the car was finally started; and that he (appellant) was driving it when the patrolman made the request to search the trunk of the car.

Gonzales fully exonerated appellant, as having no connection with or knowledge of the liquor found in the car.

Appellant did not testify.

No exceptions or objections were taken to the manner in which the case was submitted to the jury, and no complaint is here made as to the charge.

By motion for new trial appellant claimed jury misconduct during deliberations in that the jury received new and other evidence.

We have examined the statement of facts heard upon the motion for new trial and, without discussing the evidence at length, the view is expressed that the evidence was not sufficient to warrant this court in overruling the trial court’s conclusion that the misconduct did not occur as alleged, an issue of fact having been raised relative thereto.

The same conclusion is applicable to the contention that state’s counsel was guilty of inflammatory and unwarranted argument to the jury.

Believing the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.