McCoppy v. State , 110 Tex. Crim. 569 ( 1928 )

Appellant complains because in our original opinion we did not discuss his contention that the trial court committed error in declining to charge on the law of circumstantial evidence. He refers us to Burrell v. State, 18 Tex. 713, and Early v. State, 50 Tex.Crim. R., 97 S.W. 82, as supporting his contention. The principle announced in those cases has been recognized as correct where applicable under the facts in the later case of Joyce v. State, 90 Tex.Crim. R., 234 S.W. 895, and in others cited in the opinion in Joyce's case. In all of these cases a killing was actually committed by one party and the state was seeking to hold as a principal another party whose guilty connection with the killing depended upon proof by circumstances alone. We think the doctrine there announced has no application here. Under the facts as we understand them Davis v. State, 107 Tex.Crim. R., 295 S.W. 608, and the authorities therein cited are applicable. The state proved by direct evidence that whiskey was being transported in an automobile the movements of which seemed to have been under the control of appellant. The mechanical operation of the machine was by a boy who was a minor of whom appellant was guardian. By direct evidence the state made out a case against appellant which could be defeated only by establishing her plea that she had no knowledge of the whiskey's presence in the car. This defense was properly submitted and the issue determined against her by the jury.

The motion for rehearing is overruled.

Overruled.