Hawkins v. State

On Motion for Rehearing.

Appellant urges that we erred in holding that the trial court did not err in re-" fusing a special charge presenting the law of circumstantial evidence. We have again examined the statement of facts which is very short. We did not affirm in our original opinion that the sheriff saw appellant on a public road, but that he was “driving along a road going toward a gate which led 'into appellant’s premises.” We quote from the testimony of the sheriff:

“I saw him just as he was going into Ms gate rup there. Where the road leads from Wallace creek west, there is a gate and an automobile road that you don’t have to open the gate for, and just as I come around by his house there I saw him drive in at his gate, ánd wllen I got around to where he was, he had gotten through the gate into his field. I saw him as he was driving through the gate. There are two or three roads there, wagon roads; the wagon road that runs west he was on. * * * I drove on down to where he was and spoke to him. I don’t think he was drunk; think maybe he had had a drink or two. * * * I told him I would have to search him, and he Said all right, go ahead. * * * I felt over in the corner of his wagon where these sacks were, and I found a two-gallon jug under them. When I went to reach over there, he said not to bother that. * * * When I reached over there where the whisky was, he told me not to do that, to let it alone. * * * He told me, he says, ‘Neal don’t do that;’ says, T will tell you all about it if I hate to, but I don’t want to go to the penitentiary, or will have to go to the penitentiary, but I am making it for my father who was in bad health.’ * * * He was coming through the gate with his wagon when I saw him, and was traveling south in the' direction of his home. * * * I think he come up this road here (showing) when I first noticed him going through his gate into the field. * * * I saw him as he drove through his gate and stopped his wagon and come back around the wagon to close the gate. * * * He was going through the gate when I first saw him, and I was driving on down the road towards the gate. * * * He had been in my view all the time coming down the road.”

We have carefully considered this evidence, but are unable to find anything in it demanding a charge on the law of circumstantial evidence. The officer saw appellant coming up the road turning into his gate. The officer said he was about 75 yards from the gate, and was driving in that direction, and drove right on down, reaching the gate about the time appellant got out of his wagon and came around behind it to close the gate. The whisky found by the officer was in the wagon in a two-gallon jug covered with some sacks. There seems no hypothesis suggested by the testimony upon which reason could base a claim for this character of charge. One who sees a vehicle traveling along a road, and goes to it, and finds in it only one man and a quantity of liquor, makes out a ease of transportation by direct and positive testimony.

The motion for rehearing will be overruled.