Pirtle v. State , 110 Tex. Crim. 395 ( 1928 )

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

Two officers observed appellant and one Hunter approaching from a side road, the road in which the officers were in their car. The officers had a search warrant for the search of appellant's car. When they called to said parties to stop, appellant said to his companion: "Drive like hell." Said parties started away. With a shot gun one of the officers shot the number off the car in which appellant and his companion were and they stopped. Appellant reached back, got a tow sack, and began hitting it against the fender and sides of the car. When the first officer got to them whiskey was running from the sack mentioned. The officer took some of the whiskey in his hand and tasted it. He said it was colored corn whiskey. The bottoms and tops of two jars were in the sack. The other officer took the sack over to a house, borrowed a pan and squeezed enough whiskey in it to enable him to also taste same and say that it was whiskey. It seems to us that the contention that the evidence is not sufficient to show a transportation of whiskey, is not tenable.

Appellant also has a bill complaining of the refusal of the court to strike out the testimony of the officers upon the ground that their search of his car was not based on a legal warrant. The bill fails to set out the warrant or the affidavit on which same was issued, and left the trial court, and leaves this court with no ground for determining the illegality of such warrant, even if the question could be raised when the facts are as appear in this record.

There is a bill complaining of a statement made by the county attorney in his closing argument to the jury. It is set up that he used the following language:

"They said the State did not prove that the defendant and Hunter were partners. That is true, gentlemen, but that is peculiarly within their own knowledge. Did they deny it?"

It is stated in the bill that when this was said the county attorney was facing appellant and his counsel, and was pointing toward appellant. The objection is that this was an allusion to the failure of appellant to testify, and the court was asked to instruct the jury not to consider said argument, and it appears from the bill that he refused to so instruct them.

There is a discretion necessarily confided in the trial court who hears and sees the transaction in question. Walker v. State, 89 Tex.Crim. Rep.. It is held that the language used by the attorney, if claimed to imply a reference to the failure of the accused to testify, must be such as that such implication necessarily arises. Jones v. State, 85 Tex. Crim. 538. The statement set out seems plainly to refer to some argument theretofore made by appellant's counsel who appeared to be thus referred to by the use of the word "they" in said statement. Certainly it is not a necessary inference that any of the three "theys" used, referred to appellant or to appellant and Hunter. Nor is it a necessary inference that the words "Did they deny it," if having reference to Hunter and appellant, meant that they had not denied it at the time of this trial, — but might as easily have referred to the time of the arrest of said parties. We further note that nothing in this record suggests that Hunter has ever been charged with this offense, or was in any way incompetent as a witness at the time of this trial, or that he could not have appeared and entered a denial of such partnership in behalf of either party who desired his testimony. We are not unmindful of the fact that it is stated in the bill that State's counsel was facing appellant and his counsel, and that he pointed at appellant when he made the remarks above mentioned. Nothing in the bill shows that at what time during said statement State's counsel pointed at appellant, and it seems to us too plain for analysis that the plural pronoun used by him in the statement set out would have to receive some kind of interpretation or construction before it could be held to apply to appellant, who was alone on trial, and that the facts stated in the bill taken together with the statement made by the State's attorney do not appear a necessary inference that he referred to appellant's failure to testify. Mr. Vernon collates many authorities in his annotation of Art. 710 of our Code of Criminal Procedure, adhering to the rule that unless the facts amount to a necessary reference to the failure of the accused to testify, no error will be shown.

Believing none of the complaints of appellant in this case present error, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.