Knight v. State

The offense is unlawful possession of intoxicating liquor and the punishment is confinement in the penitentiary for one year.

The evidence is amply sufficient to support the verdict, if the state's testimony is true. The appellant offered no testimony in her behalf. The state's case shows that the prosecuting witness went to the place where appellant was rooming and advised that he wished to buy some liquor, and after some discussion with her, she went out and procured a pint of alcohol and delivered it to the appellant for a consideration in money. The undisputed proof shows at the time she delivered the alcohol to the appellant she was in company with one Jack Ingman.

Appellant has filed a very able and vigorous brief in which she attacks the court's charge on principals. It is contended by the appellant that the court erred in his charge submitting the laws of principals. If it be conceded that her criticism is justified it would by no means follow in this case that this constitutes reversible error. If appellant possessed the alcohol for the purpose of sale there is no question but that she was actually present and in actual physical possession of it at the time. In fact, she is the identical party whom the proof shows made the sale and, therefore, necessarily possessed the liquor for the purpose of sale. Just how under these facts a supposedly erroneous charge submitting the theory that she could be guilty as a principal if her companion Ingman was in possession of the liquor, she being present and knowing his unlawful intent and aiding him in the possession, could have in any manner prejudiced her rights is not apparent to us. We would not be authorized to reverse the case on this ground. Art. 743, Vernon's C. C. P., Robinson v. State, 37 Tex. Crim. 195; 39 S.W. 107.

Appellant also contends that because the prosecuting witness told the appellant when he sought to buy the liquor that he wasn't feeling well, that therefore the court should have submitted a charge on the theory that if she possessed the liquor for medicinal purposes she should be acquitted. Her counsel very vigorously contend that it was the duty of the court to submit this as an affirmative defense. There is no question but that it is and has always been the rule in this State that if the evidence presents an affirmative defense it is the duty of the trial court to present this affirmative defense in an affirmative charge. Bohannon v. State,273 S.W. 262. See notes under Par. 1, Art. 735, Vernon's C. C. P. The rule has been also well stated by Justice Roberts in Bishop v. State, 43 Tex. 390, as follows:

"When the evidence tends sufficiently to the establishment of a defense or mitigation of the offense charged as to reasonably require a charge as applicable, is a question of sound judgment, to be exercised by the district judge, in the first instance and afterwards by this court on appeal."

If its force is deemed to be very weak, trivial, light, and its application remote, the court is not required to give a charge upon it." Elam v. State, 16 Tex.Crim. App., 39.

We think it clear under the facts in this case that if the evidence raised the issue at all, that the appellant possessed the liquor in question for medicinal purposes, that it is so weak, trivial, light, and its application so remote as to not render it reasonably probable that the jury would, if the law applicable thereto had been charged, have been influenced thereby. As above stated, the only suggestion in this record touching this matter is the statement of the prosecuting witness to the effect that he told the appellant that he was feeling bad and needed a stimulant. There is no suggestion that there is any such relation between appellant and the prosecuting witness as to justify the belief that on this mere suggestion she got up and left her home, went out and procured a pint of alcohol and sold it to him for the sum of $5.00 after refusing to take $4.50 therefor, simply because she thought this act on her part might be conducive to the restoration of the health of the prosecuting witness.

Finding no error in the record, the judgment is affirmed.

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.