No. 10402. | Tex. Crim. App. | Nov 17, 1926
Lead Opinion
Conviction in District Court of Grayson County for transporting intoxicating liquors, punishment two years in the penitentiary.
The facts seem ample to support the conviction and present no new phases, and, therefore, we omit any discussion of same.
There are two bills of exception, one of which complains because the state's attorney asked appellant, while testifying in his own behalf, if he had not been charged by indictment in Oklahoma with a felony. The objection was that this did not call for the best evidence. The holding of this court has been that the defendant may be asked this question while testifying in his own behalf, and that the objection mentioned here is not a good one. Appellant answered that he had been under indictment at Durant, Oklahoma, and had been in the Oklahoma penitentiary.
The other bill of exception complains of a statement made to appellant by his wife at the time he was arrested, the substance of which was that she said to him: "Why did you pick me up and bring me out here and get me in this sort of a tangle?" We see no error in the action of the trial court in overruling appellant's objection. The matter seems entirely one of res gestae.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Addendum
Appellant insists that he should be granted a rehearing because of the insufficiency of the testimony, and what he asserts was error in the admission of the testimony of Mr. Shipp as to what the wife of appellant said at the time of his arrest.
We have no doubt of the sufficiency of the testimony. Appellant was arrested in his car in which was a grip containing several gallons of whiskey. The officer testified that appellant said at the time it was his. There is no question but it had been transported.
The state introduced the officers in making out their case in chief. In developing the case for the defense appellant took the stand as did also his wife, who was in the car with him at the time the officers made the arrest, and who might be regarded as a co-principal. She testified to making the trip in the car *460
with her husband, and to the fact that there was no grip in the car during the ride until they picked up a man named Barker. She testified that Barker had a grip, and that the grip produced in evidence at the trial as the one having had the whiskey in it, looked like Barker's grip. Her testimony entirely negatived the suggestion of guilt of appellant. In its case in rebuttal the state asked Officer Shipp if at the time of the arrest appellant's wife did not say to appellant: "Why did you pick me up and bring me out here and get me in this sort of a mess?" This was not a privileged communication because made in the presence of other people. Cole v. State,
The motion for rehearing will be overruled.
Overruled.