Hawkins v. State

Appellant was convicted in the District Court of San Saba County of the offense of transporting intoxicating liquor, and his punishment fixed at confinement in the penitentiary for one year.

Appellant did not testify. He introduced his father and sister as his only witnesses and they testified that on the afternoon of the date charged, appellant left his father's home some miles distant from his own in a wagon and that within the knowledge of said witnesses the wagon contained no intoxicating liquor. The State's proof consisted of the testimony of the sheriff who said he was driving along a road going toward a gate which led from the road into appellant's premises and saw the latter turning out of the road and driving through the gate into his own premises; that said officer drove up to the gate and observed suspicious looking things in the wagon of appellant which had just been driven through said gate, and proceeded to search the wagon. Under some sacks in the bed of the wagon was found a jug of whisky. When the officer started to raise the sacks appellant told him not to do so.

There are four bills of exception. The first was taken to the refusal of the trial court to allow appellant to take the stand as a witness in his own behalf, a request being made of the court to allow appellant to testify after the evidence on both sides had closed and the court was ready to read his charge to the jury. The bill is qualified by a statement of the trial court to the effect that the witnesses had been excused, that both sides had closed their testimony, and that he was ready to read the charge to the jury when appellant made his request; also that appellant did not indicate what his testimony would be if he took the stand to testify. No error appears in the refusal. Warren v. State, 31 Tex.Crim. Rep.; Richards v. State, 34 Tex.Crim. Rep..

Bill No. 2 was taken to the refusal of a special charge presenting the law of circumstantial evidence. Such refusal was not error. The sheriff swore positively to seeing appellant drive his wagon from the road through a gate into his own place. As stated above, other proof shows that he had just come from his father's home, a distance of several miles. The whiskey, upon search, was found in a jug covered by sacks and lying in the wagon bed. One whose case presents positive evidence that he was seen driving a vehicle in such fashion as that its contents were by him being transported from one place to another, can not assert said case to be one on circumstantial evidence because of the fact that the contents of such vehicle are not known to be whiskey until search thereof reveals the fact.

Bill No. 3 complains of the refusal of a special charge asking that the jury be told that no law was violated by the transportation of intoxicating liquor a distance of twenty or thirty feet on a man's own premises. Without discussing the principle involved, we observe that there were no facts calling for the submission of such issue. We have already shown the appellant was leaving the road on which the sheriff was approaching when the latter observed him; the fact that he drove through a gate into his own premises by the time the officer came up, and that his wagon when searched was on his premises, could from no angle be held to support the proposition that he found the liquor and placed it in his wagon after going through his gate. The record before us negatives such hypothesis. He was in view of the officer from the time he was observed until the whiskey was found concealed under sacks in the wagon.

Bill No. 4 presents appellant's complaint of the refusal of a special charge asking that the jury be told that the State had introduced in evidence a statement made by appellant that he had the whiskey in question for his father who was in bad health, and that unless the jury should believe from the evidence beyond a reasonable doubt that this statement was untrue, they should acquit the appellant under the second count in the indictment. The indictment in the first count charged the unlawful transportation of the intoxicating liquor, and in the second count the possession of such liquor for purposes of sale. Said charge could only have application to the second count, and the jury by their verdict of conviction under the first count, acquitted appellant under the second count. We further observe that the State introduced in evidence no such statement of appellant as appears in this special charge. The statement referred to was made by the appellant when the sheriff discovered the whiskey jug under the sacks, the officer testifying that appellant said:

"Neal, don't do that", says "I will tell all about it if I have 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."

This is the only reference in the record to such statement. Appellant had just come from his father's residence according to the testimony of said father himself. Appellant did not say, in the language of said special charge, that he had or possessed the liquor for his father. He said that he was making it for his father. He did not claim that he was transporting it for his father, and even if the evidence suggested that appellant was at some time or place unknown, making whiskey which might be for his father's use, this was not the statement made by him. The testimony of the sheriff further showed that appellant was himself drinking at the time.

This disposes of all the errors complained of in the record, and being unable to agree with appellant's contention in any of them, and the evidence supporting the judgment, an affirmance will be ordered.

Affirmed.

ON MOTION FOR REHEARING.