60 S.W.2d 217 | Tex. Crim. App. | 1933
Lead Opinion
Possession of intoxicating liquor for the purpose of sale is the offense; punishment, one year in the penitentiary.
The appellant insists that the evidence is insufficient to support the conviction. The evidence introduced by the state shows that Love Kimbrough, sheriff of McCulloch County, together with other officers, armed with a search warrant, went to a house on the Mason road in the south part of the town of Brady. The said sheriff testified that he knew where the appellant was living on and at that date and he was living in the house which they searched on the Mason road; that they found in said house a quart of alcohol and about three pints of whisky and a bunch of near beer and a lot of empty bottles, both pint and beer bottles, and a bunch of corks and crowns for these beer bottles. A quart of alcohol was in a quart bottle, and the whisky was in a five-gallon container. He also found a lot of corks that would fit in the bottles and also a capper. He further testified that at the time a young man by the name of Raymond Johnson and also one Eugene Whitehead were staying
The state also introduced in rebuttal a witness by the name of Joe Myrick who testified that he was night watchman in Brady and knew the appellant, G. L. Miers, and knew where he was living at the time he went with the sheriff to his place. He testified that, when they got to the house searched, the appellant was at home. Raymond Johnson, Judge Sanders, and Dr. Powell were also at the house.
The appellant did not testify, but offered a witness by the name of James Snell. He testified that he had lived at the house prior to the time the appellant moved out there, and prior to the time he had lived there a Mrs. Mae Achteberg had lived in that house; that he moved in said house the day after the said Mrs. Achteberg moved out, and there was at that time a lot of empty beer bottles and other bottles there; that the stuff he found there was still there when he moved out; that the appellant and Eugene Whitehead moved in about three days after he moved out.
In his brief the appellant insists that the insufficiency of the evidence lies in the fact that there is just as strong evidence against the other parties found at the house at the time of the raid as there was against the appellant. We cannot assent to this contention. The sheriff’s testimony showed that the house raided was the appellant’s house rather than the house of anyone else. His testimony along this line was as follows: “* * * I know where he was living on and prior to that date. He was living in a house on the Mason road on the south part of Brady. I had occasion to be at this house on this date. * * * I saw the defendant out there and I found about a quart of alcohol out there and about three pints of whisky.”
There is nothing in the evidence to show that anybody else was in possession of the house nor was there any evidence offered in behalf of the appellant as would disprove his possession thereof.
The appellant also contends that under the facts in this case there was no presumption against him for possession of more than a quart of whisky because of the fact that it was shown by the testimony that Raymond Johnson and Eugene White
A careful examination of the testimony in this case leads us to the conclusion that the evidence is sufficient, although circumstantial, to sustain the conviction.
The judgment is affirmed.
Affirmed.
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.
Rehearing
ON MOTION FOR REHEARING.
Love Kimbrough, the sheriff, testified that he knew where G. L. Miers resided on and prior to June 6, 1932; that upon a search of the appellant’s premises he found the articles named in the original opinion, including three pints of whisky and a quart of alcohol. Staying with the appellant were two men who had been living at the house
Neither the appellant nor either of the men who were his companions at the time of the raid gave testimony upon the trial.
Appellant presented the issue of a suspended sentence. The evidence was conflicting touching the appellant’s reputation, though several witnesses testified that his general reputation as a peaceable, law-abiding citizen was bad. Appellant was a young man about nineteen years of age.
Adverting to the recitals of the evidence upon the original hearing as well as that noted above, it is thought that we are not justified in reversing the case for want of sufficient evidence. It is also thought that no error was committed in charging upon the law of principals. If, however, it was unnecessary to give the charge, it could not be regarded as harmful to a degree that would justify a reversal of the judgment. The case of Durham v. State, 16 S. W. (2d) 1092, is not deemed authority as supporting the contention of the appellant.
The motion for rehearing is overruled.
Overruled.
ON MOTION TO ABATE THE PROSECUTION.
Appellant was indicted in October, 1932, for the possession of intoxicating liquor for the purpose of sale. He was tried and notice of appeal to this court given on October 25, 1932. The record was filed in this court on January 6, 1933. The judgment was affirmed on April 19, 1933, and motion for rehearing was overruled May 24, 1933.
By affidavit made on May 25, 1933, and thereafter filed in this court, appellant seeks to have the affirmance set aside and the prosecution annulled upon the claim that during the April, 1933, term of court he was required to give testimony on behalf of the state in the case of Raymond Johnson, it being stated in the affidavit that the said Raymond Johnson was indicted as a co-principal with the appellant in the offense mentioned. Appellant relies upon article 694, P. C., 1925, which reads as follows:
“No person shall be excused from testifying against per*157 sons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.”
In support of his claim that the judgment of conviction should be annulled, appellant cites the following cases: Dodson v. State, 232 S. W., 836, and Griffin v. State, 66 S. W., 782.
We refrain from discussing the legal question which the appellant attempts to present for the reason that the claim, as presented, cannot be considered for the reason that it comes by ex parte affidavit only and was not made an issue in the trial court either by plea in abatement or by other appropriate plea. See Dodson v. State, supra. In any inquiry on the subject, the question of the circumstances under which the testimony is given is one of fact, and upon the facts the question of immunity depends.
See Coleman v. State, 42 S. W. (2d) 1019, in which it is restated that testimony voluntarily given will not warrant immunity. It must be required. See Medlock v. State, 108 Texas Crim. Rep. 274; Henderson v. State, 103 Texas Crim. Rep., 502; Lewis v. State, 103 Texas Crim. Rep., 64. To give this court jurisdiction to pass upon the matter, it will be necessary that the question be brought before the court in some manner other than by affidavit as is attempted in the present instance.
The motion to abate the prosecution is dismissed.
Dismissed.