McNeil v. State

Conviction is for unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The liquor transported was described as "whisky and intoxicating liquor capable of producing intoxication." The law denouncing the transportation of intoxicating liquor is not qualified by the words: "for the purpose of sale" found in Sec. 1, Chap. 61, Acts of the Thirty-seventh Legislature, Second Called Session; Cecil v. State, 92 Tex.Crim. Rep.; Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 472; Ex parte Mitchum, 91 Tex.Crim. Rep., 237 S.W. Rep., 936. The evidence in the case supports the averment that the appellant was transporting whisky. We find no evidence that the whisky contained a percentage of alcohol under one per cent by volume. Sections 1 and 2 of the Acts of the Thirty-seventh Legislature,supra, defines separate offenses. Estell v. State, 91 Tex. Crim. 481, 240 S.W. Rep., 914.

The indictment against the appellant was under Section 1. In the absence of evidence to that effect, it was not necessary to charge the jury that it was not unlawful to transport alcoholic liquor which did not contain an excess of one per cent of alcohol by volume. The jury was told, both in the main charge and in a special charge given at the request of the appellant, that unless the liquor was capable of producing intoxication, an acquittal must result. The proof supports the jury's verdict that the liquor transported was whisky, a liquid which the courts judicially know as intoxicating. Pike v. State, 40 Tex. Crim. 613; Maddox v. State, 55 S.W. Rep., 832; Cyc. of Law Proc., Vol. 23, p. 61; Black on Intoxicating Liquors, Sec. 12.

At the time of his apprehension, the appellant had in his possession in an automobile in which he was traveling on the public road a quantity of whisky. Several officers pursued and arrested him and took possession of the whisky. Upon these facts the court was not in error in refusing to exclude the evidence thus obtained. Our statutes, Article 259 and 261 authorize a peace officer to arrest one who in his presence commits a felony or who, having within the knowledge of the officer, committed a felony and is about to escape, there being no sufficient time to secure a warrant, and the person or effects of the offender may be searched and the evidence of the crime seized without transgressing the rule prohibiting unreasonable searches and seizures. Brown v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 218; Jones v. State, 85 Tex.Crim. Rep., and cases therein cited.

There was no error in refusing appellant's special charge to the effect that the burden was upon the State to prove beyond a reasonable doubt that the whisky was not transported for medicinal, mechanical, scientific or sacramental purposes. The burden in this respect was upon the appellant. Roberts v. State, 90 Tex.Crim. Rep., 234 S.W. Rep., 89. The court, however, did so instruct the jury in its main charge, thereby favoring the accused to an extent which the law did not require.

There was no evidence that the intoxicant came into the possession of the appellant at a time when it was not unlawful. No charge on that subject was required.

The arrest, it seems, was made within a few miles of the city of Amarillo. Prior to his arrest, the appellant had called over the telephone the witness Allen and told him that he (the appellant) would be in Amarillo in Potter County that night about one o'clock. Allen told him that the store would be closed but that he might come to his room and sleep with him. Allen was in the wholesale drug business and testified that he had never bought any whisky from the appellant for medicinal purposes nor for any other purpose, but that on a previous occasion, the appellant had given him one or two drinks of whisky. These, however, were merely social courtesies.

At the time of the offense and at the time of the trial, it was unlawful to possess intoxicating liquor save for certain purposes named in the Constitution. One count in the indictment charged the unlawful possession of such liquor, and upon the trial, testimony relevant to that issue, as well as that of transporting the liquor, was available to the State. It is not made clear how the transaction referred to would bear upon either issue. The bill of exceptions is not so drawn as to negative its doing so. Moreover, the bill is violative of the rule which requires the facts to be stated succinctly. Instead of containing a narrative statement such as would reveal the ruling of the court, and so much of the evidence as briefly stated would illustrate the error complained of, it consists of a transcription of the stenographer's notes in question and answer form. See Jetty v. State, 90 Tex.Crim. Rep., 235 S.W. Rep., 590; Rylee v. State, 90 Tex.Crim. Rep., 236 S.W. Rep., 744; McDaniel v. State, 90 Tex.Crim. Rep., 237 S.W. Rep., 292; Watson v. State, 90 Tex.Crim. Rep., 237 S.W. Rep., 298; Alley v. State, 92 Tex.Crim. Rep., 241 S.W. Rep., 1024; Childress v. State, 92 Tex.Crim. Rep., 241 S.W. Rep., 1029. We are unable to determine from the bill that there is error in receiving the testimony

The possession in his automobile of a quantity of whisky at the time of his arrest is not controverted. It is also shown that he was traveling in the direction of the city of Amarillo which was nearby. It is not believed that the fact that he, on another occasion, had a bottle of whisky in Amarillo and gave a friend of his one or more drinks of it was of such harmful nature as to vitiate the verdict against him. Particularly is this true when it is recalled that the lowest penalty permitted by law is assessed. The transaction complained of, so far as the bill reveals, was not under circumstances that rendered the appellant guilty of an offense other than the one for which he is on trial.

During the examination of the witness Foster, appellant's counsel propounded to him this question:

"Yes, that is what I say as usual. Well, was he sick or not, Mr. Foster?"

The court refused to sustain the objection to this question, though the bill does not reveal what answer was made nor what preceded the question. The supposed error at which the bill is directed, however, is the comment by the trial judge which was, in substance, that the appellant being charged with the possession and transportation and not charged with the selling of intoxicating liquor, it would be no defense to show that he gave it to someone else for medicinal purposes. It is insisted that this was a comment forbidden by law which inhibits remarks of the court indicating his opinion as to the weight of the evidence or in any way discussing the facts. Code of Crim. Proc., Articles 735 and 736. The bill in question reflects an incautious utterance of the trial court. It is not every such utterance, however, that requires a reversal. Those only that probably injured the accused will do so. Furlow v. State, 41 Tex. Crim. 12, and other cases listed in Branch's Ann. Texas Penal Code, Sec. 269.

In the instant case there was no independent defensive evidence, and if we properly comprehend the record, there was no evidence that the appellant was transporting the liquor to be used as medicine for himself or any other person. In this state of the record, we believe that the bill reveals no reversible error.

The record is a very voluminous one, containing fifty-six bills of exceptions. We have examined them but deem it inexpedient to write about them in detail further than to say that from them we discern no harmful error committed by the trial court in the conduct of the case. The evidence we deem quite sufficient to support the conviction.

The judgment is therefore affirmed.

Affirmed.

ON REHEARING. January 17, 1923.