Land v. State , 93 Tex. Crim. 470 ( 1922 )

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for three years.

The offense took place on a date prior to the amendment of the so-called Dean Law by the Acts of the Thirty-seventh Legislature, Chap. 61.

The appellant, one Claybrook and one Glover were together in an automobile in which there was an empty demijohn, a three-gallon jug of whisky and a quart of whisky. They were arrested while traveling upon the road. Claybrook was driving the car. The arrest took place in a remote part of Baylor County near Coffee Creek, a tributary of the Wichita River. The country was rough and broken and without inhabitants except a person engaged in riding a line fence, who lived some two miles distant. Near the point at which the arrest was made there was a camp and a still.

There was objection to the evidence concerning the still, which we quote from the bill of exceptions:

"The witness, F.A.N. O'Neil was permitted to testify as follows:

`Close to where defendant was arrested, we found a tent, a camping outfit, and closer to where they were arrested we found a tent, a lot of mash. There was trails around that tent there, as if somebody had been around there quite a bit. I should judge that it was something like 300 yards or more up the creek from the tent, I found I think that it was 9 barrels of mash and part of a still. This mash was about 200 yards from where the parties were arrested, in a western direction. As to the still, I will state, in my judgment, it is what I would call a gasoline drum, about a 50 gallon capacity, with a great big place cut out of the middle of it, and then what I would call a milk can, at the bottom of it, and then what I would call a milk can, at the bottom of it was a big pipe with a cut-off valve to it. There was some buckets and other things around there, a tub or two, I think some sugar and meal.'"

The appellant resisted the introduction of this testimony upon the ground that it was irrelevant, incompetent, immaterial and prejudicial, and not binding upon the defendant, nothing having been shown to have connected him with the tent near the articles described, and for the further reason that appellant was on trial for transporting and not for manufacturing intoxicating liquor, and that there was no connection shown between the alleged unlawful transportation and the still, and other things connected therewith. The arrest was made and the still located in a remote part of the county, where it was broken and rough and where there were no people living save a fence-line rider, who camped some two miles distant.

The trial was conducted upon the theory that the burden was upon the State to prove that the intoxicating liquor was transported for an unlawful purpose, and at the request of the appellant, the court so instructed the jury. The evidence in question we deem relevant upon this issue. Whether the still was operated by the appellant and his companions or by someone else and the conditions surrounding it and its proximity to where the arrest was made suggests that it may have been the source from which the whisky which was in the possession of the appellant and his companions was obtained. If the whisky was obtained from an illicit still, whether manufactured by the appellant or someone else, it would tend to show that its transportation was for an unlawful purpose.

The appellant introduced testimony to the effect that the sister of Claybrook was an invalid and required alcoholic stimulants for medicinal purposes. He also introduced evidence tending to explain his presence in the vicinity, both on the occasion of the arrest and prior thereto on the theory that he was a fisherman, and that it was in pursuit of that avocation that he frequented the locality in which the arrest was made. The court instructed the jury on both of these affirmative defenses and also gave an instruction to the effect that it was essential that the proof show not only that the appellant was in the car in which the whisky was found but that it must show that he had it under his actual care, control and management in conjunction with his companions. The court also gave this instruction:

"The testimony introduced in this case with reference to a tent, and mash, barrels and still, near where the defendant was arrested was only admitted for one purpose and one purpose only, and that is as it may or may not bear upon the question as to the purpose for which the defendant was transporting said whisky, if you find that he was transporting said whisky, and you will not consider said testimony for any other purpose."

Of this the appellant complains on the ground that it was on the weight of the evidence. The rule is well settled that when there is introduced evidence of another offense which might be improperly used against the accused, it is proper for the court to forestall such misuse of the testimony by an appropriate charge limiting the testimony to the purpose for which it was admissible. Carroll v. State, 58 S.W. Rep., 340, and numerous other cases listed in Vernon's Tex.Crim. Stat., Vol. 2, p. 443, note 33. In framing a charge of this character, the restrictions against misleading the jury by a charge upon the weight of the evidence are to be observed. Stull v. State, 47 Tex. Crim. 549; Branch's Ann. Tex. Penal Code, Sec. 192; James v. State,86 Tex. Crim. 602. We fail to discern, however, in the charge quoted any transgression of this rule. The instruction, if we properly comprehend it, does not in any sense intimate to the jury that the trial judge entertained any impression with reference to its weight. See authorities in Branch's Ann. Tex. Penal Code, Sec. 190.

The point made against the indictment that it is not unlawful to transport intoxicating liquor save for the purpose of sale has been decided adversely to the appellant's contention. Stringer v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 159; Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 472.

We deem the evidence sufficient to support the conviction. The judgment is therefore affirmed.

Affirmed.

ON REHEARING February 14, 1923.