Gillespie v. State

BERRY, Judge. —

Appellant was convicted in the district court of Palo Pinto- County for the offense of having intoxicating liquor for purposes of sale in his possession and his punishment assessed at confinement in the penitentiary for a term of one year.

■ The State’s testimony shows that appellant was arrested while alone in his automobile in the town of Mineral Wells and that in said car at the time was found a certain carton of fruit jars containing an aggregate of about four gallons of corn whiskey. The State also proved by two witnesses that shortly before the arrest he offered to sell them corn whiskey. The appellant claimed that a stranger, whose name was thought by him to be Feast, after asking for a ride from Palo Pinto to Mineral Wells, had put the carton in the car at the former place and left it in the car on.reaching the latter place, and that the appellant had no knowledge that it contained whiskey and had no ownership therein.

Appellant complains of the charge of the court on principals, be- ■ cause, he claims, there is no evidence, circumstantial or otherwise, showing that defendant acted with any one therein. This objection is not tenable. The defendant’s testimony clearly and cogently raised the issue of principals, and the court’s charge submitting this issue is a clear and concise exposition of the law.

We cannot sustain appellant’s contention that the law of circumstantial evidence should have been charged, because the State’s evidence is direct and positive that appellant possessed the liquor and that he offered liquor for sale.

Bill of exception No. 2 complains of the court’s action in not permitting appellant to testify to the details of a conversation he had with the man he hauled from Palo Pinto to Mineral Wells, to the effect that “When said unknown man got out of defendant’s automobile he asked defendant how long he was going to be there and that said man told defendant he wanted to leave his carton in his car while he went to the Post Office garage on business and that if he was unable to close up his business deal with a negro there he would come back and get the carton and remain in Mineral Wells, otherwise he wanted to go to Fort Worth with the defendant.” The court permitted appellant to testify fully as to the ownership of the whiskey being in the unknown man and to appellant’s lack of knowledge of the placing of the liquor in the car. He was also permitted to testify that when the unknown man got out of the car and left him he was “to be gone a short time.” This clearly protected any right appellant had in the matter. The State had not offered any part of this conversation, and therefore, in our opinion, the authorities cited by appellant are not in point.

Finding no error in the record, it is our opinion that the judgment should be affirmed, and it is 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.