Richmond v. State , 96 Tex. Crim. 598 ( 1923 )

The only question raised in the motion is the sufficiency of the evidence. The facts relied on by the State briefly were as follows: (1) Appellant's possession when arrested in fall of 1921 of 27 1/2 gallons of whisky in his car; (2) his ownership of the car; (3) his statement when overtaken and arrested "Well, you got me, I got twenty-seven gallons;" (4) Duncan's testimony that he had a conversation with appellant at Stamford "just prior to his leaving to get the whisky . . . I told him if he run across some good whisky to bring me a quart; . . . he had not agreed to deliver me a gallon; . . . he did not tell me what it would cost, I don't think he did; . . . this was just before he was arrested;" (5) Pennell's testimony that he got whisky from appellant along in the fall of 1921; "he always delivered me a quart when I bought it from him; . . . bought a quart from him in August, paid him five dollars for it; . . . had more than one conversation in reference to delivering me whisky." Consideration of this testimony would seem to lead irrestibly to the conclusion of guilt of possession of the 27 1/2 gallons of whisky for purposes of sale.

Appellant cites Lankford v. State, 93 Tex.Crim. Rep., 248 S.W. Rep., 389. The only issue in that case was the refusal of appellant's request for the submission of the law of accomplice testimony. We thought the facts called for the granting of this request and for its refusal reversed the case, but nowhere was it intimated that had the request been granted, the case would have been reversed for the lack of evidence. Appellant cites Phillips v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 146 and Chandler v. State, 89 Tex.Crim. Rep., 231 S.W. Rep., 107. In each of those cases the State relied wholly on accomplice testimony. Such is not the case here. By witnesses in no way subject to attack as accomplices appellant's possession in his car on a road of 27 1/2 gallons of whisky and his voluntary statement when arrested "Well, you got me, I have 27 gallons," was shown. This court has never held that a jury's conclusion of guilt of possessing intoxicating liquor for sale was dependent on proof of actual sales by the accused. Numerous cases might be cited but attention is only called to Hightower v. State, 94 Tex.Crim. Rep., 249 S.W. Rep., 1048; Kelly v. State, 95 Tex.Crim. Rep., 252 S.W. Rep., 1065; Newton v. State, 94 Tex.Crim. Rep., 250 S.W. Rep., 1036. The illegal purpose for which the liquor is possessed might be inferred from the quantity, or the surrounding circumstances pertaining to the particular case. It would be a question of fact for the jury and their finding would not be disturbed unless manifestly against the weight of the testimony. In this case, in addition to the finding of appellant in the possession of the quantity of liquor above mentioned and his statement clearly indicating a consciousness of guilt, the testimony of Mr. Duncan and of Mr. Pennell is for the consideration of the jury and is entitled to such weight as the jury sees fit to give it. There was no request for any instruction to the jury to the effect that these gentlemen or either of them was an accomplice. The case is not wholly dependent on accomplice evidence and in our opinion rested upon sufficient facts.

The motion for rehearing will be overruled.

Overruled.