Davidson v. State

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The evidence is conflicting. From that of the State, it is sufficient to show that appellant and three other persons — Berry, Purtle and Wyatt — went in appellant's automobile from Mineral Wells to the town of Thurber, about forty miles distant, and while at Thurber, they procured a quantity of intoxicating liquor, part of which they brought in appellant's automobile to his home in Mineral Wells and part of which they consumed en route. The exact quantity is not revealed, though it seems that the whisky was in a gallon bottle from which they drank on several occasions. There were also a number of bottles of beer, which, according to some of the State's witnesses, was intoxicating. The carrying of the intoxicating liquor was denied by the appellant.

The verbiage of the indictment is like that held sufficient in the case of Tucker v. State, 94 Tex.Crim. Rep., 251 S.W. Rep., 1090. Appellant and his companions had been drinking of the contents of the bottle, and it was not incompetent to show that they became intoxicated. This was relevant upon the character of the liquid in question.

During the examination of the witness Purtle, the trial judge told the district attorney that he might lead the witness. The bill of exceptions complaining of this is deemed without merit. There are many circumstances under which a witness may be properly asked leading questions. Armstead v. State, 22 Texas Crim. App. 59, and other cases listed in Branch's Ann. Tex. P.C., Sec. 157. In order to justify a reversal because of leading questions, it is essential that the bill of exceptions affirmatively show that the circumstances were not such as rendered leading questions permissible and also show facts from which prejudice to the case may be inferred. See Montgomery v. State, 4 Texas Crim. App., 142, and other cases listed by Mr. Branch in his Ann. Tex. P.C., Sec. 159. In the present case, we do not learn from the bill that the witness gave any testimony; nor does the bill reveal circumstances which led the court to give permission to lead the witness.

The State used the witnesses Purtle, Wyatt and Berry. Berry drove the automobile which belonged to the appellant. Wyatt and Purtle were in the car and took part in drinking and handling the liquor. According to the undisputed testimony, if we properly comprehend it, the parties left Mineral Wells with the agreement and understanding that they would go to Thurber after intoxicating liquor, and that pursuant to this agreement, they did go there, obtained the liquor and returned with it in their joint possession.

Appellant complains of the court's failure to charge on accomplice testimony. There was no error in refusing to give the instruction for the reason that in this character of prosecutions, the statute provides that the purchaser, transporter or possessor of intoxicating liquor shall not be held an accomplice. See Acts of the 37th Leg., 2nd Called Sess., Sec. 2c.

In the bill complaining of the refusal of the court to charge on the law of suspended sentence, it is not shown that appellant was under twenty-five years of age and that he had not previously been convicted of a felony. The bill, therefore, discloses no error. See Holdman v. State, 94 Tex.Crim. Rep., 251 S.W. Rep., 218.

The record revealing no error, the judgment is affirmed.

Affirmed.

ON REHEARING. November 14, 1923.