Boatcallie v. State , 121 Tex. Crim. 149 ( 1932 )

Appellant insists that his bill of exception No. 15 reflects reversible error. The bill recites that Bob Cloud, a witness for the state, testified that on the occasion of the Austin-Bryan basket ball game at College Station he bought whisky at appellant's garage; that there were a number of boys who went to the garage on the same occasion; that there were other high school boys drinking on the same night; that there were about three boys in his car when he went to the garage, and that three of the boys became intoxicated; that he did not know whether they got the whisky from appellant's garage or not, and was unable to say where it came from. Appellant objected to this testimony on the ground that it was not shown either directly or circumstantially that the whisky on which the boys became intoxicated had been bought from appellant; and, further, that a large part of said testimony was hearsay. It is merely stated as a ground of objection in the bill of exception that appellant's connection with the sale of the whisky on which the boys became intoxicated was neither directly nor circumstantially shown. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code, sec. 209; Edelen v. State, 103 Tex.Crim. Rep., 281 S.W. 1078; Buchanan v. State, 107 Tex.Crim. Rep., 298 S.W. 569. If the bill should be considered, the opinion is expressed that the testimony of the witness shows circumstantially that the boys in the car with the witness became intoxicated on whisky that had been purchased at appellant's garage. Appellant appears not to take issue with the holding in the original opinion that the testimony of various witnesses to the effect that on various occasions at a time not too remote they had bought whisky at appellant's garage from one or another of appellant's sons was properly admitted. We are constrained to hold that the bill of exception fails to reflect error.

Appellant asserts that we were in error in holding that bill of exception No. 16 fails to manifest reversible error. It appears that state's witness Lang testified that he went to appellant's garage and bought a pint of whisky. Over appellant's objection that the statement was hearsay, the witness was permitted to testify as follows: "As to how I knew I could get whisky there, I just heard some boys talking about it." In the original opinion it was stated that this testimony was hearsay, but the conclusion was reached that under the facts reflected by the record the error in receiving it was harmless. The state's testimony, as well as that of appellant's witnesses, showed beyond question that boys could get whisky at the garage whenever they went there. Appellant's son testified that he was selling whisky at his father's garage. Several witnesses for the state testified to having bought whisky at the garage on different occasions. We think the matter was correctly decided in the original opinion.

The court instructed the jury, in substance, that if they believed from the testimony that appellant did not possess the whisky in question for the purpose of sale, and further believed that he did not aid or encourage Willie Boatcallie in the possession of the liquor for the purpose of sale, if he did possess it, or if they had a reasonable doubt thereof, to acquit appellant. Appellant admits that he did not properly object to this charge on the ground that it was on the weight of the evidence. Hence, we deem it unnecessary to determine whether such exception would have been well taken. It is appellant's contention that the charge was erroneous in failing to require the jury to find that appellant was present at the place where the whisky was possessed by Willie Boatcallie, and, further, in failing to require the jury to find that at the time appellant had knowledge of the unlawful intent of Willie Boatcallie. In his charge on the law of principals, the court specifically instructed the jury that before they could convict appellant as a principal they must believe from the evidence beyond a reasonable doubt that Willie Boatcallie possessed the whisky for the purpose of sale and that appellant was present, and knowing Willie Boatcallie's unlawful intent, aided him by acts or encouraged him by words in the commission of the offense. We think the charge, taken as a whole, adequately protected appellant's rights.

We deem it unnecessary to again analyze the testimony. The opinion is expressed that the evidence is sufficient to support the conviction.

The motion for rehearing is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.