Winfield v. State , 163 Tex. Crim. 445 ( 1956 )

MORRISON, Presiding Judge.

The offense is transportation of intoxicating liquor in a dry area, with a prior conviction for an offense of like character alleged to enhance the punishment; the punishment, two years in jail and a fine of $2,000.00.

Assistant Chief of Police Baker of the city of Athens testified that he was driving along a highway outside the city limits of the city of Athens, which ran roughly parallel to the boundary line of the city, at approximately midnight when he observed a motor vehicle approaching him; that since the road was very narrow he pulled over on the shoulder and stopped; that the appellant, whom he recognized, passed in a pickup truck, and he observed a number of cardboard boxes which he suspected contained alcoholic beverages in the rear thereof; that he turned his head and observed the pickup; that a moment or two after the pickup passed him the appellant turned off the lights of his truck and accelerated his speed; and that he then turned his automobile around and gave chase.

Baker testified that the chase continued for several miles; that it originated and ended outside the city limits of the city of Athens, and at no time did they enter the bounds of the city. When he brought the appellant to a halt he observed that the boxes in the rear of the pickup were cases of wine, beer, liquor and gin; that he arrested the appellant and took him and the intoxicants to the sheriff.

The prior conviction alleged was established.

Appellant did not testify in his own behalf and offered only witnesses on the question of the appointment of Baker as a deputy sheriff.

We shall discuss the questions raised by appellant’s able counsel in his brief and argument.

Bill of Exception No. 1 relates to the arrest by Officer Baker for an offense committed outside the limits of the city of Athens. Appellant relies upon Irwin v. State, 147 Tex. Cr. Rep. 6, 177 S.W. 2d 970. In that case the arrest and search were for the operation of a policy game, while the arrest in the case at bar was primarily for driving without lights. We quote from Officer Baker’s testimony:

“Q. When you turned around, what did you do? A. I pursued him.

“Q. What caused you to pick him up? A. Because he turned off his lights.”

He also testified that a minor reason for the arrest was his suspicion that the boxes in the rear of the pickup contained intoxicants.

In Hurley v. State, 155 Tex. Cr. Rep. 315, 234 S.W. 2d 1006, we had an identical situation to the one here presented except that the offense there involved was driving while intoxicated. Among the “preceding articles of this Chapter” mentioned in Article 803, V.A.P.C., upon which we relied in the Hurley case, is Article 798, V.A.P.C., which denounces the offense of operating a motor vehicle upon a public highway at night without lights.

We perceive no irreconcilable conflict between Article 793 and Section 2 of Article 6701c which would operate as a repeal of the former act.

Under the authority of the Hurley case, we have concluded that Officer Baker was authorized to arrest the appellant under the facts herein set forth. Having so concluded, we do not deem it necessary to pass upon the extent of Baker’s authority under Article 666-24, V.A.P.C., or the question of whether or not he might legally be both a city policeman and a deputy sheriff.

We are not unmindful of the possibilities of abuse of authority which appellant’s counsel argues so forcefully may result from this decision, but we feel that we are bound by the acts of the legislature and the prior decisions of this court.

Bill of Exception No. 3 is directed at an alleged reference to the appellant’s failure to testify which occurred while the county attorney was interrogating officer Baker. We quote from the bill:

“Mr. Hardee (State’s Attorney) : What happened, if anything, when you stopped him on Highway 19? A. I walked back to where he was and asked him why he was driving so fast.

“Mr. Justice (Attorney for defendant) : We object, on the basis that when this man stopped the defendant, he had him under arrest.

“Mr. Hardee: May I say something, your honor; that is the only evidence we have here is his testimony that he did not arrest.

“Mr. Justice: Now, if the court please, we ask that you declare a mistrial of this case, on the basis that he commented on defendant’s failure to testify, and ask for a mistrial.”

The bill recites that, following this, the county attorney said, “I would like to say something else; I have not mentioned anything about the defendant not testifying.”

Normally, a reference to the defendant’s failure to testify occurs during the argument of an inexperienced prosecutor. The above colloquy occurred during the examination of a witness.

Appellant relies upon two cases which also fit this unusual situation.

In Biggerstaff v. State, 125 Tex. Cr. Rep. 372, 68 S.W. 2d 498, we reversed a conviction, among other reasons, because the prosecutor, while cross-examining a defense witness, asked several questions of which the following is typical: “If you were charged with having sold me half a gallon of whisky in this court before this jury, do you know of anybody that could tell that jury better than you could whether you sold it to me or not?”

We held that these questions necessarily called the jury’s attention to the failure of the accused to testify.

In Heeter v. State, 103 Tex. Cr. Rep. 399, 281 S.W. 565, we reversed a conviction, among other reasons, because the prosecutor, while examining a witness and when interrupted by the State’s objection, said, “This defendant is here; if he wants to testify * * * .”

We would not be inclined to extend the holdings in the above cases and feel that an extension would be required to hold that the statement to the court set out above constituted a comment upon the defendant’s failure to testify.

Appellant’s remaining contentions relate to alleged discrimination in the selection of the panel from which he was required to select the jury that tried him. The sole basis of discrimination urged grows out of the failure of the jury commissioners to select women on the panel. Appellant concedes that he is not a member of the class which he alleges was discriminated against in this case but urges us to hold that any discrimination, if shown, would vitiate the panel.

We need not pass upon the question of whether the examination of the jury commissioners showed that they discriminated against women because it has been the consistent holding of this court that an accused might not urge discrimination against a class of which he is not a member. Alexander v. State, 160 Tex. Cr. Rep. 460, 274 S.W. 2d 81. See also 9 A.L.R. 2d 611.

Finding no reversible error, the judgment of the trial court is affirmed.