DocketNumber： No. 13846.
Judges： Lattimore, Morrow
Filed Date： 12/17/1930
Status： Precedential
Modified Date： 11/15/2024
Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.
There are no bills of exception in this record. This being the way all complaints of procedure must be brought before us (article 667, C. C. P.), we are without power or right to consider any question presented in the able brief filed by appellant's counsel, save such as pertain to the sufficiency of the testimony. The sheriff of the county testified that he saw appellant come from a certain domino parlor with a paper sack or package in his hand, get in a car and drive off down by the Barnes Lumber Company, then turn back to the bridge by Hensley's filling station. Witness followed and drove his car up to a point just behind the one driven by appellant. He testified that looking through the glass in the back of appellant's car he observed the occupants put their hands up to their mouths as if drinking. He said that appellant got out of his car, leaving the car door open, and that witness walked to said car and saw the package or paper sack sitting on the floor of the car in such position as would have been between the driver's feet. Witness took the package and found it to contain a half gallon of whisky. He said appellant got from under the steering wheel when he got out of the car. Cross-examined, this witness affirmed that he was positive he saw appellant take said package to the car. Another state witness corroborated the sheriff as to the fact that appellant got out of the driver's seat of his car at the filling station, and that there was sitting there in the car a paper sack which had in it a half gallon of whisky.
Appellant testified that he drove the car in question to said filling station, but said he had no package before he got in the car, put none in the car and knew nothing of the presence of any package. He introduced a number of witnesses who testified that they saw him just before he got in the car, and saw no package in appellant's hand.
The testimony for the state, if believed by the jury, would be sufficient to make out a case against appellant for transporting intoxicating liquor. While this testimony is strongly combated by that offered for appellant, it is the rule of our statutes and all of our decisions that the jury are the exclusive judges of the weight of the testimony as well as the credibility of the witnesses, and when there is any testimony in the record which, if accepted by the jury, will suffice, we invariably decline to reverse such case.
In his motion for new trial appellant set up misconduct of the jury. We have examined the testimony of the jurors heard by the court when *Page 256
said motion was presented. The alleged misconduct was that some one said in the jury room that appellant had done other things which would justify his being sent to the penitentiary. All the jurors testified on the hearing of the motion. No one of them would claim to have made any remark about appellant's past, but several of them testified that they heard some such remark, but that it was at once stopped by the foreman who said nothing of that kind could be considered. A large number of the jurors said that they did not hear any such remark, and most of those who said they did hear it stated that they had already agreed upon their verdict at the time they heard such remark. Several of the jurors testified that at the time they heard the remark made they had already voted that appellant was guilty, and had also fixed by their agreed verdict the amount of his penalty. When the record presents to the trial court such condition of conflict, we have always said that the action of the trial court in overruling the motion for new trial, based on such misconduct, would be upheld by us. Manley v. State,
No error appearing, the judgment will be affirmed.
Affirmed.