Winters v. State

Conviction is for the transporting of intoxicating liquor, punishment being one year in the penitentiary.

Appellant in an automobile left his home at Guthrie to go to Merkel. His route would take him through Aspermont. At the latter place he drove into a garage to have a tube in a spare casing repaired. The sheriff testified that as appellant was backing his car out of the garage he was caused to stop it by the officer who found under the back seat one full quart of whiskey and another about two-thirds full. It was the theory of the State that the liquor was in the car when appellant drove it into the garage. Appellant denied this, his claim being that he met two strangers in a toilet back of the garage, bought the whiskey from them upon their promise to put it in his car, and that the last he saw of them they were going towards the garage. Appellant admits that he intended to continue his journey with the whiskey, but claims he did not back the car out of the garage, and that he had not gotten in the car when the sheriff apprehended him and discovered the liquor. Mr. Senter, the garage owner, testified that he thought one of the employees backed the car out as it was the custom for them to do so to avoid accidents. If appellant had the whiskey in the car when he drove into the garage he would be guilty of having unlawfully transported it. If he procured the whiskey and had the sellers place it in the car while it was in the garage, and he backed the car out intending to continue his journey with the whiskey in it, or if one of the men employed at the garage backed the car out for appellant in order that he might continue his journey, appellant knowing the whiskey was then in the car, the transportation would have begun, and upon either horn of the dilemma, appellant would be guilty. Lamb v. State, 95 Tex.Crim. Rep., 255 S.W. 424; Lee v. State, 95 Tex. Crim. 654, 255 S.W. 425; Coburn v. State, 255 S.W. 613; Black v. State, 255 S.W. 731; Hamon v. State, 259 S.W. 1083. The court properly refused the requested instruction for a peremptory verdict of acquittal.

Complaint is made that the court over objection permitted the witness, Senter, to give it as his opinion that no one placed the liquor in appellant's car while it was in the garage. In view of the explanation to the bill and the entire evidence of such witness we think there is no merit in the contention.

Bills of exception three and four present no error when considered in the light of the court's explanation of the matters therein brought forward for review.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.