Johnson and Edwards v. State , 118 Tex. Crim. 286 ( 1931 )

Attached to the motion for rehearing is a paper bearing the signature of the members of the jury who rendered the verdict in this case, in which it is stated that since rendering the verdict there has come to their knowledge facts producing the belief that Johnson is not guilty. The court at which the trial took place adjourned on September 20, 1930. The document mentioned bears date April 14, 1931. It does not purport to be any part of the record, and its incorporation in the motion for rehearing filed in this court is manifestly improper. Its appearance in the motion carries the implication that favorable action upon the appeal is to be obtained from this court through matters which are not part of the record and which the court has no right to consider. The document will be expunged from the record with the hope that one of the same nature will not again be brought to the attention of the court. Such a document cannot benefit the accused. It does counsel no credit and this court no honor.

This appeal, so far as it relates to J. M. Edwards, is dismissed at his request.

The sufficiency of the evidence is vigorously assailed in the motion for rehearing. J. M. Telford, the sheriff, and A. T. Fowler, his deputy, testified upon behalf of the state. A summary of the testimony of the sheriff is as follows: The appellant, Johnson, and his companion, Edwards, were seen by the officers traveling in an automobile from Brownfield to a point two and one-half to three miles from Brownfield, where the car occupied by the appellants was parked in a place among the weeds on the side of the road. As the officers approached, Edwards took from his car two quart jars of liquor, one of which was nearly full of whisky. The other jar was broken to pieces but contained the odor of whisky. There were no other persons nearby. There were no tracks indicating the presence of any other persons. This occurred about twenty minutes after they left Brownfield.

Fowler's testimony was in substance the same as that of Telford, save that from the time the witness came in sight of their car the appellants did not leave it until Fowler got to it at the place described by Telford. Fowler further said that he did not see any persons present besides the appellants.

In his testimony Edwards verified the statement of Gaston with reference to the location of the whisky and the information and permission that was given Edwards by Gaston. As Edwards was about to go in his car to the place designated by Gaston, he found that his wife and baby were in the car, and met Johnson, who proposed that they go in his car. Following the directions he had received from Gaston, they went to the point where the arrest was made. Johnson was driving the car, and they drove to the place where the quart of whisky was hid. Edwards got out of the car and Johnson later followed him. He found an empty jar among the tumble-weed, which he put on the running-board of the car. He then found another quart jar which was nearly full of whisky. The jar that had the whisky in it was opened and they each took a drink. About that time the officers arrived. Edwards was fixing to hide the whisky but the sheriff arrived before he succeeded in doing so. Edwards testified that the whisky was not brought there by them. They had no trouble in finding the liquor.

Johnson testified that he learned of the presence of the whisky in a conversation between Edwards and his friend. His testimony touching the journey was in substance the same as that of Edwards, that is, that they found one empty jar and a quart jar which was practically full of whisky. They took a drink of the whisky. Edwards smashed the jars together. One of the jars was practically empty and cracked. He denied carrying the whisky to Brownfield. He also denied the possession of any whisky or interest in it further than to take a drink of it.

The quart jar in which the officers found some whisky was produced and identified at the trial.

In support of the proposition that the evidence does not support the verdict, the appellant cites the following cases: Rousey v. State, 110 Tex.Crim. Rep., 7 S.W.2d 557; Veasey v. State, 97 Tex.Crim. Rep., 260 S.W. 1054; Hester v. State, 97 Tex.Crim. Rep., 262 S.W. 484.

A number of exceptions to the court's charge are embraced in the document prepared by the appellant, to which the court appended the following statement:

"The above and foregoing objections and exceptions of the defendants to the court's main charge were presented to the court and the district attorney upon conclusion of the evidence and before the main charge was read to the jury, with the request that said charge be corrected and amended so as to conform thereto. The court, however, after correcting the charge refused to correct and amend the main charge save and except as shown in the charge as given to the jury herein, to which action of the court the defendants then and there excepted, and are allowed this as their bill of exceptions to the action of the court, which is hereby ordered filed by the Clerk as a part of the record herein, this the 1st day of September, 1930."

This statement of the judge leaves this court without any information as to what condition the charge was in when the exceptions were addressed to it. The court states that he amended the charge but declined to do so save in the particulars shown by the charge given. There is presented no additional information to this court, and it is without any knowledge as to what parts of the charge were under criticism at the time the court acted as indicated by his qualification.

The witness Gaston testified that he met Edwards at Brownfield, and together they entered a restaurant, where Edwards indicated that he wanted a drink of whisky and was told by Gaston that he had some whisky at a certain place near the road, at which place Edwards could find the whisky and get a drink; that the liquor had been put there by the person from whom it was purchased by Gaston. The witness disclaimed any relationship with the appellants.

To sustain the verdict the evidence must be such as warranted the jury in concluding, beyond a reasonable doubt, that the appellant, Johnson, possessed intoxicating liquor for the purpose of sale. See Veasey v. State, 97 Tex.Crim. Rep.,260 S.W. 1054; Rousey v. State, 110 Tex.Crim. Rep.,7 S.W.2d 557. To meet this burden, reliance is had upon the statute declaring that the possession of more than a quart of intoxicating liquor is prima facie evidence that such liquor was possessed for the purpose of sale. As affecting the appellant Johnson, the evidence is cogent in support of the claim that his connection with the liquor was for use as a beverage. See Hester v. State, 97 Tex.Crim. Rep.,262 S.W. 484. Rebutting the inference of possession for sale is the testimony of Gaston, an apparently disinterested witness, and of Edwards, who was the main actor in bringing Johnson in contact with the liquor, and who has withdrawn his appeal.

Upon reflection, especially in the aspect in which the appeal stands since the withdrawal of the appeal of Edwards, the conclusion is expressed that as to Johnson, the motion should be granted, the judgment affirming the case set aside, the judgment of the district court reversed and the cause remanded.

Reversed and remanded.