Atwood v. State
| Decision Date | 02 January 1924 |
| Docket Number | (No. 7839.) |
| Citation | 257 S.W. 563 |
| Parties | ATWOOD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Eastland County; George L. Davenport, Judge.
Harry Atwood was convicted of possessing intoxicating liquors for purpose of sale, and he appeals. Reversed and remanded.
Burkett, Orr & McCarty, of Eastland, for appellant.
Tom Garrard, State's Atty., of Midland, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.
Appellant was convicted in the district court of Eastland county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at two years in the penitentiary.
We have carefully examined the statement of facts, and find ourselves in disagreement with appellant's contention that the evidence is not sufficient to support the verdict. Briefly, the facts show that a carefully prepared receptacle under the floor of a court or building adjacent to that unquestionably run by appellant was found to contain 14 bottles of bottled in bond whisky. A heavy plank in the floor had been carefully arranged so that it moved upon concealed hinges. A Yale lock had been set into said plank, the location of which was artfully hidden under an ordinary soda water bottle stopper. This metal stopper upon being removed revealed the Yale lock, unlocking which the plank could be raised upon its hinges and the place of the storage of the liquor thus revealed. The proof showed that the building was moved from another place to where it stood by appellant, or at most by appellant and one Barnes, one making the arrangement to move it, and the other paying for the work. The men who put the hinges in the plank and the lock therein, thus making the necessary arrangement to the successful working of the concealed place for storing the liquor, testified that they did this work at the request and under the supervision of appellant. A number of men testified that, at various times anterior to the finding of the hidden store, they had bought liquor from the appellant. Nearly all of the witnesses who testified about the matter said that the liquor found by means of the raid in question was whisky. The learned trial judge instructed the jury that whisky was an intoxicating liquor. We think no error was thereby committed. We deem it unnecessary to further express our views that appellant's bill of exceptions No. 1, complaining of the refusal of a peremptory instruction in his favor, presents no error.
Appellant's bill of exceptions No. 4 complains of the refusal of a special charge in substance that, if the jury believe that the garage in question was controlled and managed by any person other than the defendant, or if they had a reasonable doubt of such fact, they would return a verdict of not guilty. The refusal of this was proper. Appellant was not charged with keeping premises for the purpose of storing liquor, etc., and the issue as to the control and management of the garage in question would not be decisive of the question before this jury. The garage, as such, might be controlled and managed by Cleve Barnes, and at the same time the liquor stored under a particular part of the floor be in the possession and control of this appellant. The court below instructed the jury that, in order to possess liquor, as that term was used in the charge, the party possessing must have a personal relation to it; that is, must have actual, personal care, control, and management of it. This was favorable to the appellant.
Appellant complains of the refusal of a special charge, in substance that the jury must believe beyond a reasonable doubt that he had charge of the garage in question under which the alleged intoxicating liquor was found, and by reason thereof knew that said liquor was under said garage, and that, if the jury had a doubt as to either of those conditions, they would resolve same in favor of the defendant, and acquit him. We do not think either proposition correct. As we have above indicated, it was not necessary for appellant to have charge of the garage in question in order to be guilty, nor was it necessary that, by reason of having charge of the garage, he knew that the liquor was under the floor in order to arrive at the same conclusion.
Appellant presented various exceptions to the court's charge, which we have carefully examined, and with no contention in which are we in accord. Complaint was made of the fourth paragraph of the court's charge, because it submitted the proposition that appellant would be guilty if he either alone or in conjunction with some other person possessed the liquor in question for the purpose of sale. Such charge upon appropriate facts would be entirely correct. The evidence seems to raise the proposition of the acting together in the control and management of the premises of appellant and another, and in our opinion none of the exceptions to the charge were sound.
Appellant filed a motion to quash the jury panel, based in part upon the proposition that the jury wheel was not filled from the tax lists of the qualified voters of the county, and in part on the fact that the action of the authorities in filling the wheel and drawing the jury did not take place at the courthouse, as required by statute. Evidence was heard by the trial court in support of appellant's motion to quash. It was shown that, because of lack of room in the courthouse proper, the county commissioners had rented rooms across the street for the use of the collector and assessor of the county, and that the filling of the wheel and the drawing of the jury took place in the assessor's office. The evidence shows that an order had been made by the commissioners' court, including these outside offices within the courthouse. Aside from the sufficiency of this order to meet this objection, we would not be inclined to sustain appellant's contention in this regard. Substantial compliance with the statute is all that is required, and while the law in question requires the filling of the jury wheel, etc., to take place at the courthouse, we would not understand this to be literally binding in every case. If so, there would be cases in which no juries could be drawn or obtained because of the lack of courthouses. Appellant's contention would prevent the securing of juries in counties whose courthouses had been destroyed or had become unsafe, or which were without such buildings. In our opinion, a building or office rented for the purpose of official use and under the control of the county authorities would be such place as is contemplated by the statute.
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Harrington v. State, 40849
...a jury which came from the jury wheel in question, we conclude that no reversible error is shown. Reliance is had upon Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563, which itself was based on Vasquez v. State, 76 Tex.Cr.R. 37, 172 S.W. 225. Appellant has failed to note that Vasquez v. Sta......
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Bridgman v. Moore
...requiring it to be drawn by the clerk in the presence of the judge "in open court." Art. 592, Code Civ.Proc. In Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563, 565, in still another direct attack, the same court, in construing the same statute, held that the drawing of a jury from a jury w......
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State v. Dascenzo
...in evidence. Thompson v. State, 72 Tex. Cr. R. 6, 160 S.W. 685; Lerma v. State, 81 Tex. Cr. R. 109, 194 S.W. 167; Atwood v. State, 257 S.W. 563; and Cook v. State, 258 S.W. 1058. With this condition obtaining concerning the decisions from the Court of Criminal Appeals of Texas, appellant mu......
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State v. Dascenzo.
...been received in evidence. Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 685; Lerma v. State, 81 Tex. Cr. R. 109, 194 S. W. 167; Atwood v. State, 257 S. W. 563; and Cook v. State, 258 S. W. 1058. With this condition obtaining concerning the decisions from the Court of Criminal Appeals of T......