Henson v. State

The appellant was convicted of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

This is the second appeal of this case to this court. The first appeal will be found in 101 Tex.Crim. Rep.,276 S.W. 926, where a sufficient statement of the facts is given.

The record contains five bills of exception. Bill No. 1 complains of the refusal of the court to submit to the jury, appellant's application for a suspended sentence, the court's refusal being based upon the fact that the appellant, at the time of the alleged offense, was about sixty years of age and consequently did not come within the provisions of Art. 689, P. C., which provides that no person over twenty-five years of age who is convicted of violating the liquor laws (Ch. 7, P. C.) is entitled to the benefits of the suspended sentence act. It is the contention of the appellant that Art. 776, C. C. P., to the effect that a person convicted of any felony except murder, perjury, burglary of a private residence at night, etc., whose punishment does not exceed five years, etc., is entitled to the benefits of the suspended sentence law, supercedes and, in effect, repeals Art. 689, P. C. We are not in accord with this contention and are clearly of the opinion that Art. 689, P. C., which limits applicants for a suspended sentence upon conviction of violating the liquor laws to persons under the age of 25 years, is a special law applicable only to Ch. 7, P. C., and to persons convicted of violating the liquor statutes, while Art. 776, C. C. P., is a general law applying to all felony convictions except those enumerated therein, and that in whiskey cases Art. 689, P. C., takes precedence over said Art. 776, C. C. P.

Bill of exception No. 2 complains of the refusal of the court to give in charge to the jury appellant's special charge No. 2 to the effect that if the jury believed from the evidence that appellant was manufacturing the alleged liquor for medicinal purposes, "or other purposes," to find him not guilty. We are of the opinion that the court committed no error in refusing to give this special charge. The only defense interposed by appellant was that he was making the whiskey for medicinal purposes. This special charge, in embracing the phrase "or other purposes," would have authorized the jury to return a verdict of not guilty, although they might have believed that appellant was making the whiskey for the purpose of sale.

Bill No. 3 complains of the action of the court in permitting the officer, Albright, to testify, over appellant's objection, that the appellant, when arrested, was in a state of intoxication. This bill presents no error, since the testimony objected to was part of the res gestæ and clearly admissible. Upon the former appeal we held that the admission of this evidence was not error. Also see Edelen v. State,281 S.W. 1078.

In bill No. 4 complaint is made to the action of the court in permitting the state to prove by the witness Albright that the appellant remarked to the officers arresting him, "Well, boys, you have caught me with my pants down." This bill, as presented, fails to show that this statement was not res gestæ, and in the absence of such showing the presumption is that the court ruled correctly thereon. Edelen v. State,281 S.W. 1078.

Bill No. 5 complains of the refusal of the court to sustain appellant's motion to arrest the judgment herein, first, because the indictment fails to allege that the appellant manufactured spirituous, vinous, intoxicating, or malt liquors, etc., and, second, because the verdict is unintelligible. We are of the opinion that both of these contentions are untenable. The indictment charges that the appellant "did then and there unlawfully manufacture spirituous, vinous and intoxicating liquor and malt liquor and medicated bitters capable of producing intoxication," etc. We think this is amply sufficient.

The verdict of the jury is as follows:

"We, the jury, find the defendant, W. H. Henson, guilty as charged by indictment and assess his punishment at confinement for one year in the penitentiary.

"Foreman J. O. LOGWOOD."

The fact that the word "foreman" precedes the name "J. O. Logwood" does not, in our opinion, render said verdict invalid. Art. 687, C. C. P., states that in felony cases "not less than twelve jurors can render a verdict. * * * It must be concurred in by each juror and signed by the foreman." This court has held that it is not absolutely necessary for the verdict to be signed under this statute. Yarber v. State, 24 S.W. 645; Mackey v. State, 151 S.W. 802. It will be observed that the statute does not state how or where the verdict shall be signed, whether before or after the word "foreman," and we take it to be immaterial whether the title or the signature comes first. This identical issue has been decided in Missouri against the contention of appellant. State v. Lynes, 184 S.W. 535; State v. Jackson, 253 S.W. 735.

Finding no error in the record, after a careful examination thereof, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly 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.

ON MOTION FOR REHEARING.