Rainey v. State , 89 Tex. Crim. 293 ( 1921 )

Appellant was convicted in the District Court of Van Zandt County of having in his possession intoxicating liquor, not for mechanical, scientific, medicinal or sacramental purposes, in violation of what is termed the Dean Act, and his punishment fixed at one year in the penitentiary.

There are fourteen bills of exception in this record, the contentions in which will be noticed without mention of the formal objections made.

A motion to quash the indictment for its failure to use the expression "had in his possession" the liquor in question, was properly overruled as it appears that the indictment charged the accused "did possess" such liquor, and we see no substantial variance. That the law under which the prosecution was had is unconstitutional, etc., has been fully decided in Ex parte, Gilmore, 88 Tex.Crim. Rep., 228 S.W. Rep., 199. That the State's attorney asked a witness, "What first attracted your attention to the defendant?," did not appear to call for the answer given, which was "I was standing at the fountain watching for him, — expecting him, — I had been called, — well I was watching for him." It would seem that if this answer was objectionable the proper procedure would have required a motion to strike out same as not being responsive, and that an objection to the question asked would not seem to be well taken.

The question, "Did and liquor come into your hands, — by anybody?" does not seem to be open to the objection that it was leading, or contained matter hurtful to appellant.

State's counsel exhibited to a witness two bottles, a funnel and a glass jug, and asked him what was the size of the bottle at the mouth, and the witness answered, "Just a little bit larger than the little end of the funnel." No objection was made to this as not being responsive, but it was objected to as having a tendency to convey to the jury the impression that appellant was engaged in selling the liquor found in his possession, and that the effect of this was prejudicial. We do not agree to this proposition, for it is a necessary part of the proof in a case such as the instant case, that it be shown that the possession of the accused was for some purpose other than those excepted by statute, and if the proof showed that he had the liquor in question for sale, it would be pertinent as establishing the kind of possession made punishable by statute.

Appellant objected to a State witness, who said he was acquainted with the smell of whisky and "had smelled lots of it," being permitted to testify that the bottles taken from appellant's car, from their odor, contained whisky because not qualified. We are unable to see any sufficient reason why one who knows the smell, taste or appearance of a given substance, may not testify from such examination, his conclusion as to what the substance so examined is. The objection would seem to refer more to the weight than to the admissibility of the testimony. This is true of the objection to the testimony of the witness Osborne who said he had not much experience with whisky, but that in his judgment that shown him was whisky.

This witness also testified that a jug shown him had the same smell as "it had that night." The bill sets out various grounds of objection to this testimony which does not seem to us to be of much materiality but no statement of the surrounding facts, relating to the matter objected to, is made in the bill of exceptions from which we may determine whether the objections made are tenable. This condition also obtains in appellant's bill of exceptions No. 9, which sets out certain objections to testimony to the effect that the contents of certain bottles, by taste and smell, appeared to be sorry corn whisky in the judgment of the witness. The objection seems to be that the witness was not qualified, and that there was no identification of the liquor exhibited to him, as that found in appellant's possession. When objections are made the bill setting same forth must show affirmatively not only the grounds of objections stated, but enough facts to make it reasonably apparent that such objections are meritorious.

Bill of exceptions No. 10 sets forth a conversation had between appellant and the sheriff after the arrest of appellant and he had made bond. The bill is not clear, but the court below approved same with a reference to the statement of facts, from which we gather that appellant went to the sheriff on said occasion and asked his opinion as to the best course to pursue, and the officer told him what he thought, and in response to what was said by the officer appellant stated he did not deny having the liquor in question, but had made his mistake by being caught with it. The statement of appellant, and that which was part of the same conversation and which elicited his statement and shed light upon it, was admissible. In this same conversation appellant said that he drank too much. This was admissible as bearing upon the question that the liquor was possessed for an unlawful purpose.

The witness Kellis was permitted to state that from his experience in manufacturing, drinking and handling whisky, he could tell that the bottle shown him contained home made whisky and that it was intoxicating. This does not appear to be erroneous. The liquor involved was tasted, examined and smelled by a number of witnesses, each of whom testified to its character, and the record is practically bare of any serious contention on that question.

A witness testified, without apparent objection, that appellant had a pistol in his car when arrested. The record also shows that upon motion of appellant this testimony was excluded.

By his fourteenth bill of exceptions appellant complains that durin gthe argument State's counsel had before him three bottles, two containing the liquor in question, and one empty; also a funnel, and that he said to the jury, "Look at that stuc, put a pistol beside it, then you would have a picture of unlawful yeapons." The bill of exceptions statees that this was objected to and the court asked to instruct the jury not to consider same, but we are unable to find in the record any written request to the jury asking the mnot to consider such argument. The only question thus presented to us is whether such argument was of that character as to make it so materially injurious to the rights of appellant as to require a reversal, in the absence of any requested instruction such as just mentioned. We do not think so. It was not the statement of any fact dehors the record, which was likely to produce substantial injury to the accused, but would appear to be more in the nature of an attempted pleasantry on the part of counsel for the State. Appellant was not charged with making an assault upon anybody by the use or carriage of unlawful weapons, and a statement that putting three whisky bottles and a pistol together would make a picture of unlawful weapons, would not appear to us to produce any serious injury to the rights of appellant.

We have given careful attention to each of the matters presented by appellant, and finding no reversible error in the record, an affirmance is ordered.

Affirmed.

ON REHEARING. June 1, 1921.