Calley v. State

The offense is unlawful possession of intoxicating liquor; the punishment is one year in the penitentiary.

The appellant claims in his brief that the proof of guilt does not exclude every other reasonable hypothesis and that the identification of the appellant is not established with that degree of certainty required by law. The state's witness Herman Howell, a nine year old boy, testified on these points as follows:

"I have seen this defendant, Aubrey Calley, before this time today; I mean this man sitting by the side of Judge Littler in the court room — the young fellow. Along about the time of that rodeo I saw the defendant going up to Mr. Hartman's here in Big Spring, and then I saw him and another man back kinder behind Mr. Hartman's place and behind Mr. Griffin's; they were in the alley back there. It is not level ground there; there is a ditch, a deep ditch there where I saw them. I first saw them digging; that was the first thing I saw him doing — I just saw him digging — that was the first thing, digging where the bank had caved off. He was digging a hole in the ground. Bill O'Brien and Vernon Franklin were with me at the time I saw the defendant and the other man there doing the digging. I forget now which one of the men was digging first, but one of them dug first and then the other one dug. But at that time this defendant told us boys to go around the corner and play there; that it was a better place to play around there. After they left the place where they were digging I went back to the place where they dug and scraped down into the fresh dirt where they had dug, and first found a red keg, then after Mr. Satterwhite got there he found another keg. The kegs sitting in the court room — the red keg and the other one, look like the kegs found there where the men did the digging. Mr. Satterwhite took both of the kegs found there away with him. He first opened the kegs. I know of my own knowledge that these are the kegs that we found there."

Similar testimony was given by the O'Brien boy.

Sheriff Satterwhite testified that he arrested the appellant and about the same time that he arrested him he found some whiskey in a ditch just behind Claude Wright's house. That the ditch that the whiskey was in was just about on the south line of the alley behind the house. That when he found the whiskey and the kegs it was hidden from view. That the little boys had found the red keg before he got there and had the dirt raked off of part of it and pointed it out to him, that is, Bill O'Brien and Herman Howell did. That after he found this liquor, he went to Hartman's house, opened the screen door, and Mrs. Wright was standing at the table washing the dishes, and Calley and the other man, the short man Dublin, were sitting over east of her, back of the cook stove; and that he asked Mrs. Wright if those two men were the only men that had been around her house that morning, on being told that they were, he arrested Dublin and this de-defendant, and asked whose car it was sitting out in the yard, and the defendant spoke up and said that it was his car, and as quick as he told the sheriff it was his car, the sheriff arrested them both. He identified the kegs in the courtroom as those he found there and testified that they both contained whiskey; that the two contained about twenty gallons, ten gallons each, he further testified that the red keg had been in the Ford car claimed by the appellant, giving as his reason that there was no cushion on the back seat of the car and that the red keg had ridden lengthwise on the seat and the back part of the seat was painted red for just the length of that keg.

We think this testimony authorized the jury to find to a moral certainty and beyond any other reasonable hypothesis that the appellant possessed the whiskey in question and to find that his identification was established beyond controversy.

The appellant also complains because the court instructed the jury on the law of principals. The appellant's objection to this part of the court's charge is that the indictment contained no allegation that the defendant was acting with another person and that there is no evidence in the record to the effect that he was acting as a principal. It is not necessary for the indictment to allege that a party is acting as a principal in order to enable the state to make proof of this fact and to authorize the court in submitting this issue. It occurs to us that the state's testimony shows beyond question that the appellant and the party named Dublin were acting together in the possession of this liquor and the court correctly presented this theory of the case to the jury.

Complaint is also made at the court's action in overruling appellant's second application for a continuance. This application was based on the absence of Robert Dublin, the party who was indicted for the same offense as this defendant. The application seems to be conclusive on its face that the absent witness is at the present time under indictment for this same offense and, if so, would of course not be a competent witness for the appellant. In any event, the application shows that Dublin is a resident of the State of New Mexico and no error is perceived in the court's action in refusing to continue the case on account of his absence. Ortiz v. State,151 S.W. 1056.

Neither do we think that reversible error was shown in the court's action on account of refusing to continue the case on account of the absence of John B. Howard, one of appellant's attorneys. The record manifests the fact that appellant was represented by able counsel and we think the court did not abuse his discretion in refusing to continue the case until Mr. Howard could be present.

There being no error found in the record, in this case, it is our opinion that the judgment should be in all things affirmed.

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.

ON MOTION FOR REHEARING.