Vance v. State , 119 Tex. Crim. 324 ( 1931 )

LATTIMORE, Judge.

Conviction for transporting intoxicating liquor; punishment, one year in the' penitentiary.

The case on its facts exhibits a not unusual situation. Appellant was observed by officers upon a lane which entered a public highway. Upon observing the officers he backed his car rapidly until it ran into a ditch. While backing it he was seen to be breaking something in the car with a hammer. Seven broken half gallon jars of whisky were found in a carton in the car. The bottom of the car was swimming in whisky. The officers found four other half gallon jars full of whisky between the point where appellant first saw them and the point where he ran in the ditch. Appellant took the stand and testified that he found the carton of whisky in some weeds near the road, and not knowing it was whisky but thinking it was, he put it in his car, and when he saw the officers, whom he called the “law”, he became so excited that he did not know what he was doing for the next few minutes. The evidence of his possession and transportation of intoxicating liquor was so overwhelming and plain that it was impossible for the jury to have arrived at any other conclusion than that of his guilt.

Five bills of exception are in the record. Two complain of questions asked by the prosecuting attorney, and two complain of arguments made by him, and the other complains of the refusal of an instructed verdict. It would not add to this opinion to set .out the questions asked by the state’s attorney and objected to, which objections in most instances were sustained, and the prosecuting attorney told by the court that the questions were illegal and improper. The asking of questions which are clearly improper in their form, and might be prejudicial, is a practice much to be deplored, and if this jury had evidenced that they might have been prejudiced or their minds inflamed, by giving this appellant anything more than the minimum penalty allowed by law, we would unhesitatingly reverse this case because of the improper questions referred to. It is difficult for this court to understand how counsel for the state, however zealous and earnest he may be, or however flagrant the case on trial may appear to be, can so far forget himself as to ask, in the presence of the jury, a question for instance such as this: “You have transported more whisky in this county in the last two years than any living man, haven’t you?” The court sustained the objection and told the jury not to consider the question. What we have just said applies to most of the statements set out in the two bills complaining of the argument. It is certified that in his opening argument the county attorney stated that the defendant was a notorious bootlegger, and that the court said to the jury: “Gentlemen of the Jury, you will not consider that remark of the county attorney. It is not in evidence,” and that the court further told the jury they would have to try the case according to the evidence before them, and not according to the county attorney; that the county attorney’s remarks regarding appellant being a bootlegger and a notorious bootlegger were improper in that there was no evidence that he had sold liquor at any time or place. The attorneys for the state should be mindful of the time and expense involved in the reversal and retrial of criminal cases, and should not jeopardize the sustaining of verdicts of guilty by argument or questions manifestly improper. Especially is this true in a case which upon its facts appeared to so overwhelmingly demonstrate the guilt of the accused.

The jury having given appellant the lowest penalty, and the facts being without serious contradiction, the judgment will be affirmed.

Affirmed.