Bailey v. State

• Decision Date: 03 October 1923
• Docket Number: (No. 7573.)
• Citation: 260 S.W. 1057
• Parties: BAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 1057

BAILEY v. STATE.

(No. 7573.)

Court of Criminal Appeals of Texas.

October 3, 1923.

Rehearing Denied April 30, 1924.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

Leslie Bailey was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.

F. B. Caudle, of Mt. Vernon, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The indictment charged that appellant did "unlawfully transport spirituous, vinous, malt, and intoxicating liquors, not for medicinal, mechanical, scientific or sacramental purposes." This sufficiently charged the offense. The law did not require an averment that it was transported for the purpose of sale. Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

According to the state's evidence, at the time of the occurrence appellant was seen by the witness Autry; also by Moore, the sheriff. Later Autry and appellant met in the town of Winnsboro, and a conversation took place in which Autry admonished the appellant that he would have trouble unless he amended his ways in the respect in question. Appellant said that at the time he met the sheriff he was scared, and that if the sheriff had stopped him at once he would have caught him. Autry told appellant that if he would quit like he had promised he (Autry) was glad that the sheriff did not catch him, but that unless he did quit he was bound for the penitentiary. To this appellant assented, and that there was an old boy in Winnsboro who wanted appellant to bring him a couple of quarts, and that he had told the party that after doing so he was through. There was no objection to the introduction of this testimony, but there is a complaint of the argument of the county attorney in which he said that the "appellant was a bootlegger and was peddling whisky over the country." Upon objection to the argument the court told the jury that there was no evidence that appellant was selling liquor, and that the argument was improper. In qualifying the bill it is shown that the county attorney had told the jury that there could be no conviction for selling whisky, as appellant was charged with transporting it. We think the inference that appellant was peddling whisky was not an improper one from the conversation mentioned. The argument of the county attorney, based upon the conversation to which Autry testified, had sufficient warrant in the evidence to exclude it from the rule which renders an argument obviously harmful.

In testing the qualifications of the veniremen the court inquired whether they were each householders in the county or freeholders in the state. It is claimed that it was ascertained after the verdict that one of the jurors was not qualified in the respect mentioned. Facts showing his status were developed. A recital of them is deemed unnecessary, but it may be said that it is doubtful whether this objection would have been tenable if made at the time. There was no contention that the juror was not fair and impartial, and his service on the jury did not vitiate the verdict. See Squyres v. State, 92 Tex. Cr. R. 160, 242 S. W. 1029, and cases therein cited.

The record presenting no error, the judgment is affirmed.

On Motion For Rehearing.

HAWKINS, J.

Appellant insists that the evidence classifies his case as one requiring a charge on the law of circumstantial evidence. The question was properly raised, but in some way we overlooked it. Moore, the sheriff, while traveling upon a public road in an automobile, met appellant, who was traveling in a buggy. The sheriff was going north and appellant south. After having traveled about 50 of 100 yards from where he met appellant the sheriff turned his car, overtook appellant, and examined his buggy, but found therein no whisky. The sheriff then retraced his course, and at a bridge he saw the witness Autry, who was coming from a branch towards the road with a quart jar containing whisky. Against the bank of the creek there was found a broken bottle with whisky near it. When searched the buggy of appellant was about 200 yards from the point at which the broken jar of liquor was discovered. At the time the sheriff met appellant no indication was given of any intent on the officer's part to molest or follow him. Autry was traveling in a wagon going north. After the sheriff had passed him and met appellant, and as the latter approached the bridge, he was seen by Autry to throw something from his buggy into the creek. About the same time Autry observed the sheriff coming back. Upon reaching the bridge at the point where appellant threw something out of the buggy, Autry saw a bottle or jar on the ground which contained whisky and another broken bottle near by. These were at the bottom of the gully. About the broken bottle was liquid which smelled like whisky, and the ground was wet. Appellant was not arrested at the time. This was on Tuesday. On the following Saturday, in the town of Winnsboro, a conversation is claimed to have occurred between appellant and the witness Autry. Appellant denied having this conversation, and Autry affirmed it. According to Autry, he took appellant to a private place, and a conversation ensued. From Autry's testimony we quote:

"I struck up with him in Winnsboro and I called to him and told him I wanted to have a talk with him. I carried him around behind a store like and began talking to him, and I admonished him to quit his way of living. I hardly know how to state any part of the conversation without telling the whole thing. He said that transaction scared him the worst he was ever scared; and I said, `Yes; I am sure that it did; and if Mr. Moore had stopped you when he first met you he would have got you;' and he said, `Yes, Mr....