Williams v. State , 118 Tex. Crim. 369 ( 1931 )

I cannot agree to a reversal of this case. But one witness testified. His testimony fully made out a case of transporting intoxicating liquor on the part of appellant. Same showed appellant to have been driving on a public road in a car which contained sixty half-gallon fruit jars of whisky. Appellant offered no testimony.

We find in the record only one bill of exception which sets out and complains of the following testimony:

"I stated that myself and Jack Delaney were standing in front of the Colorado National Bank, and Jack called my attention — he says, 'Look at that car coming yonder,' he says, 'It is loaded.' After he turned down the street we walked across the street and got in my car. The car was headed east and my car was parked over by the City National Bank, so when we saw this car going down the street we went across the street and got in my car and took after his and headed him off right this side of Lonewolf bridge, and he was just barely going, on the Bankhead highway, and we jumped out and Jack started to stop him and he began to back up like he was going to try and get away, and about that time I got out, about that time we jumped out and asked him where he lived and he said 'Sweetwater,' and we asked him who had the key to the turtle back and he said, 'A man at Sweetwater,' I says, 'Who does the car belong to,' and he says, 'To the man in Sweetwater.' And Jack walked around to the back and raised it up, and I was still standing there talking to him — I never did see in the back at all, and Jack was just standing there and nodded his head, and I says, 'How much have you got, pardner,' and he said 'Thirty gallons,' I asked him and Jack nodded his head and I says, 'How much have you got, pardner,' and he says, 'Thirty gallons of red rye whisky.' And he said, 'These boys in here with me, they have not got anything to do with it,' he says, 'I picked them up either at Big Springs or right this side of Big Springs,' he says, 'I just picked them up' and he says, 'I am the man.' That was the defendant that made that statement. The defendant was driving the car. I do not believe there was anything else said right there at the time by the defendant, not that I recall. I then got my handcuffs and shackled the two boys that were with this fellow, and Jack brought them on in my car, and I took Williams and brought him on to jail and locked him up. I did not say that Jack Delaney brought the car the defendant was driving, no. He drove my car and the two boys that were with him. I came in the defendant's car. As to what we did when we got to jail: I forgot to say that we searched them for a gun, after he said he had thirty gallons, and when we got over to the jail house, when they got out of the car, I said, 'Is there anybody you want to notify,' and he wrote a name down and told me to notify this fellow at Sweetwater — I believe his name is Curtis Tidwell, Sweetwater, Texas, that is, I know he wanted me to notify Curtis Tidwell, Sweetwater. We did make a search of the car the defendant was driving, after we got to the jail. When we searched the car we found containers — I think it was twelve of those fruit jars to the box, and there was five of those containers packed back in the back and close up to the seat, fruit jar containers. There were five of those boxes, yes. As to how much each contained: I just looked at two, they were full up, every one. I turned the stuff in the car over to Mr. Kuykendall. The size of those fruit jars I think is two quarts, a half gallon. The size of a fruit jar counsel exhibits to me is the size of the fruit jars I testified were in the car, yes. There was twelve of those fruit jars per case, and five cases. Sixty half gallon fruit jars were contained in that car. The four fruit jars that are upon this table here were in that car. They are full. I have smelled and tasted the contents of those jars. The contents of those jars smelled and tasted like whisky. Those jars contained whisky. The remainder of that whisky is in the jail. The defendant was arrested and stopped near the Lonewolf bridge and the whole transaction that I have testified about occurred in Mitchell County, State of Texas."

No particular part of said testimony was pointed out or specified in said bill. That said bill of exception was too general, and that considerably more than half of the testimony objected to was patently competent and admissible, is apparent from a reading of said bill.

There is no better settled rule of practice, nor one that has been more consistently upheld by every judge who has been on this bench from the beginning, than that of a bill containing a general objection to testimony, a part of which is admissible, is insufficient to manifest error if it does not single out the inadmissible portion of the testimony. In Gaines v. State (Texas Crim. App.), 37 S.W. 333, Judge Hurt says: "The next bill of exceptions is to the introduction by the State of a conversation between McAllister and the defendant after and concerning the difficulty. Part of the conversation between McAllister and appellant was clearly admissible. A part of it may not have been admissible. When this is the case it devolves upon the party objecting to specify that part to which he objects. A general objection will not reach it."

In Payton v. State, 35 Tex.Crim. Rep., 34 S.W. 615, 616, Judge Henderson says: "It was admissible for the State to show that some of the lost property was found on the ground where they had arrested the defendant the night before. This part of the testimony was certainly admissible. If the bill in question had pointed out that portion of the testimony which was inadmissible, and had stated the grounds therefor, it might have been excluded by the court; but this was not done."

In Ortiz v. State, 68 Tex.Crim. Rep., 151 S.W. 1056, 1057, Judge Davidson says: "A bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions of the evidence."

In Tubb v. State, 55 Tex.Crim. Rep., 117 S.W. 858, Judge Ramsey says: "But the objection interposed went to the whole testimony, and the rule seems to be well settled that where an objection, such as this, involving a number of statements given, a part of which are admissible and some portions of which may be inadmissible, and there is nothing in the objection to directly challenge or single out the objectionable testimony, that such a bill ought not in fairness to be considered. This proceeds upon the principle that it is not fair to a trial court, for that it must be assumed that if the objectionable testimony were directly challenged by pointing it out and singling it out for decision, that same would be sustained, and where counsel content themselves in a case where much of the answers and testimony is admissible and only some features of it inadmissible, to make a general objection, that this is not good practice or fair to the trial court."

In Rucker v. State (Texas Crim. App.), 47 S.W. 1015, Judge Davidson says: "Where some of the evidence objected to is inadmissible, and some not, it is necessary that the bill of exceptions point out that portion of the evidence which is objectionable. If the objection is of a general nature, and to all of said testimony, irrespective of whether or not it is objectionable, this court will not make the selection for theobjecting party."

In Smith v. State, 92 Tex.Crim. Rep., 244 S.W. 138, 139, Judge Hawkins says: "Second, because many of the questions were proper and answers elicited thereby clearly admissible, and the bills are therefore too general. See rule announced and authorities collated under section 211, Branch's Ann. P. C., page 135."

Again in White v. State, 113 Tex.Crim. Rep., 20 S.W.2d 197, Judge Hawkins says: "The rule is well settled that a bill of exceptions will not be held to show error, when part of the matter objected to is competent, even though there be other parts embraced within such objection which are not competent."

In Solosky v. State, 90 Tex.Crim. Rep., 236 S.W. 742, citing Tubb v. State, supra, Judge Morrow says: "The bill of exceptions is inadequate to present the exclusion of a part of the testimony adverted to for the additional reason that the objection was addressed to the proof of all the acts of the appellant, some of which were clearly admissible. Under such circumstances the objection made should point out the part of the testimony which is deemed objectionable. When the attack is against the whole, the court is not in error in overruling the objection where he would have been authorized to exclude only a part. See Tubb v. State, 55 Tex.Crim. Rep., wherein the reason for the rule is stated. Other illustrations of this application will be found collated in Branch's Ann. P. C., sec. 211."

Again in Dixon v. State, 91 Tex.Crim. Rep.,238 S.W. 227, Judge Morrow said: "As these bills are drawn, no error is shown. Much of the testimony involved was manifestly admissible. It is a general rule that where a part of a statement is admissible and a part subject to objection, a bill complaining of the ruling of the trial court in admitting the whole is too general. It should segregate and point out that which is claimed should have been excluded. When the objection is directed to the whole statement, a part of which is admissible, it is not the duty of the trial judge to segregate it, but he has the privilege to overrule the objection. Branch's Ann. Texas Penal Code, sec. 211."

Opinions of Judge Martin of our Commission, on the same subject, will be found in Jones v. State, 112 Tex. Crim. 625,17 S.W.2d 1059, and Green v. State, 108 Tex. Crim. 666,2 S.W.2d 274, in which the opinion on rehearing was upheld by Presiding Judge Morrow. Opinion of Judge Christian along the same line will be found in Black v. State, 111 Tex.Crim. Rep., 13 S.W.2d 101. Of Judge Baker of our Commission in Vaughn v. State, 102 Tex.Crim. Rep.,280 S.W. 772, upheld by Judge Hawkins upon motion for rehearing, and Vargas v. State, 104 Tex.Crim. Rep.,284 S.W. 564, upheld by Judge Morrow writing upon the motion for rehearing.

The writer of this opinion has himself in many cases upheld what he regards as the well settled law of this state of too long standing to be disturbed. Instances of his opinions are Collier v. State, 110 Tex.Crim. Rep., 9 S.W.2d 265, upheld by Judge Hawkins on motion for rehearing, and Mauney v. State, 85 Tex.Crim. Rep., 210 S.W. 959; Tracy v. State, 111 Tex.Crim. Rep., 12 S.W.2d 205.

There being but the one bill of exception, and it being in such condition as to that it should not be considered, I see no reason why this judgment should not be affirmed. My brethren being of a different mind, I have no option but to record these conclusions and note my dissent.