Terry v. State

Appellant was convicted in the district court of Wise county for possessing intoxicating liquor for the purpose of sale and his punishment assessed at two year and six months' confinement in the penitentiary.

By bill of exception No. 1 complaint is made that the indictment could not be identified by the minutes of the court, because the name of appellant does not appear therein. In this there was no error shown. Art. 446, Code of Criminal Procedure; Bohannon v. State, 14 Ohio App. 272; Malloy v. State, 33 S.W. 1082; Fields v. State, 151 S.W. 1051; Haynes v. State, 83 S.W. 16.

By bill of exception No. 2 appellant complains of the court's charge in defining possession. The definition as given by the court was correct. Newton v. State, 250 S.W. 1037.

In this case the court defined "possession" as "having personal charge of and exercising the right of ownership and control of" the liquor in question. In the Newton case, supra, Judge Lattimore uses this language: "We think the court's definition of possession as applicable to this offense, viz., that it meant having personal charge of and exercising the right of ownership and control of the liquor in question, presents no error."

By bill of exception No. 3 appellant complains of the action of the court in failing to charge on circumstantial evidence. A charge on circumstantial evidence was not required in this case. One half gallon of whisky was found in the residence of appellant where he and his wife lived and over which he exercised full control.

Under the statute this was prima facie evidence that appellant possessed the liquor for the purpose of sale.

Sec. 2-e, page 54, Acts of Second Called Session of the Legislature, 1923; Davis v. State, 267 S.W. 513; Egbert v. State, 176 S.W. 560.

Bill of exception No. 4, complains of the refusal of the court to give appellant's special charges; but a careful examination of the court's charge convinces us that every right appellant had in this matter was fully protected.

By bill No. 5 appellant also complains of the court's action in refusing to give a special charge limiting the consideration or effect to be given the finding of the whisky in the car of the witness Layton and also to the finding of the whiskey on the ground where Layton's car was stopped. This charge was properly refused, in view of the charge on this question already given by the court. The testimony shows that Layton had bought the whiskey found in his car from the appellant only a short time before the appellant's house was searched and under these conditions every right appellant had was protected by the court when he charged the jury to the effect that testimony had been admitted to the effect that a car in which Layton and other persons were riding had been stopped and that whiskey was found in the car and that by the road side near the place where the car was stopped and that in that connection the jury was instructed that they could not consider this testimony for any purpose unless they believed it shed light on the offense with which the defendant is charged, and unless they did so believe they would disregard said testimony for any purpose. We see no material difference between this charge and the one offered by the appellant, to the effect that before they could consider this evidence the jury must believe that the defendant had been in some manner connected with the whiskey so found.

Bill of exception No. 6 complains of the remark of counsel for the State to the effect that it was thought from what defendant's counsel had said about character witnesses for the defendant in the presence of the jury that they were going to show his good character. This remark ought not to have been made; but, under the authorities in this State, it is not such error as will require a reversal. Coyle v. State, 21 S.W. 765; House v. State, 19 Ohio App. 239.

Bill No. 7 complains of the charge of the court and of the refusal to give a special charge as to the finding of a still at the time in question on the place that the defendant had rented and was in possession and control of at the time. The witness, Kirkman, testified that he was in the employ of the defendant and that he helped construct one of the little houses and that the defendant had employed him to build it, and there was other evidence showing that the defendant was connected with the operation of this still; the still was right near the home where he was living, and the evidence is ample to show — at least by the strongest kind of circumstances — that he had a guilty connection with it.

By bills 8, 9 and 10 complaint is made of the court's action in refusing to allow the appellant to ask the officers who found the whiskey on the defendant's premises whether they saw any whiskey in his possession, etc. We think that the cross-examination of these witnesses clearly shows that appellant was afforded every right to conduct a fair and reasonable cross-examination of them, and we see no abuse of the court's discretion in the ruling complained of.

By bill No. 13 complaint is made because the court permitted State's counsel to ask the witness, Calvert, who was one of appellant's attorney's and who testified for him on the trial of the case, concerning certain statements that the State's witness Layton was alleged to have made to him in his office, as to Layton's condition with reference to being drunk, etc. This matter is of hardly sufficient importance to require discussion. The bill does not show what the witness' answer was to some of the questions, and the entire matter seems to have been admissible as reasonable cross-examination.

By bill No. 14 appellant complains that the court gave verbal instructions to the jury. This bill shows that while the witness, Layton, was testifying for the State that he went to defendant's house on the night of the alleged offense about two hours prior to the time the officers searched the premises and that he then and there asked the defendant if he had any whiskey and the defendant said he did, and Layton told him he wanted a half gallon, and the defendant brought it to him and he paid him five dollars for it, whereupon counsel for defendant objected to said testimony, and in admitting it the court made the statement that he would overrule the objection with the explanation that the defendant was on trial here for possession of intoxicating liquor for sale and that the jury could not convict him for any other offense and that they could not convict in this case for selling liquor, but if they believed defendant had liquor in his possession on the occasion testified about that they might consider this evidence, if they believed that it bore on the issue as to the purpose for which he had it in his possession, and that they could not use it for any other purpose, and that it was admitted on that issue if the jury believed it had any bearing on it — that is, the purpose for which he had the whiskey.

While it is true that the court may not give verbal instructions in a felony case, we do not conceive from the record before us that this was an attempt to do so. It was more in the nature of a limitation, favorable to the defendant, of the testimony at the time it was admitted, and the court followed this with a correct written charge limiting this testimony. Under these conditions, we do not think the statement of the court can be viewed as a verbal charge.

Finding no error in the record, and being convinced that the facts are sufficient to warrant the verdict of the jury, it is our opinion that the case should in all things be affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeal and approved by the court.

ON MOTION FOR REHEARING.