Beauchamp v. State, 13452.
| Decision Date | 18 June 1930 |
| Docket Number | No. 13452.,13452. |
| Citation | 32 S.W.2d 476 |
| Parties | BEAUCHAMP v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Fannin County; R. T. Wilkinson, Judge.
Jimmie Beauchamp was convicted of transporting intoxicating liquor, and he appeals.
Affirmed.
F. A. Dale, of Bonham, for appellant.
A. A. Dawson, State's Atty., of Canton, for the State.
Unlawfully transporting intoxicating liquor is the offense; penalty, confinement in the penitentiary for one year.
The record recites that a recognizance had been taken in the sum of $1,000. However, the recognizance does not appear in the record. It is essential that the recognizance appear in the transcript so that this court may determine whether it is such as to give jurisdiction.
The clerk of the district court of Fannin county is directed to prepare and forward to the clerk of this court a supplemental transcript embracing the recognizance.
The clerk of the Court of Criminal Appeals will give notice of this order.
On the Merits.
The conviction is for unlawfully transporting intoxicating liquors; penalty, confinement in the penitentiary for one year.
The transcript having been corrected, the appeal will now be considered on its merits.
Both the statement of facts and the bills of exceptions are almost wholly in the form of questions and answers. The record is void of any certificate of the trial judge affirming the necessity for bringing up the record in question and answer form. By the terms of article 760, subd. 3, C. C. P. 1925, it is required that statements of facts and bills of exceptions be in narrative form and shall not contain the questions and answers except upon the certificate of the judge that the questions and answers are necessary to elucidate the fact or question involved. That the court is not authorized to consider a statement of facts consisting of questions and answers unless there be some necessity therefor certified by the trial judge at the time the statement of facts is approved was specifically declared by this court in an opinion by Presiding Judge Davidson, in the case of Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163, decided March 11, 1908, in which an act of the Thirtieth Legislature (Acts 1907 [1st Called Sess.] c. 24, § 6) was construed. A like announcement was again made by the court in the opinion of Judge Ramsey in the case of Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927. The court has consistently made a like declaration, as will be noted in the case collated in Vernon's Ann. Tex. C. C. P. 1925, vol. 3, p. 100, note 23. The rule has also been applied in the following recent cases: Gifford v. State, 101 Tex. Cr. R. 7, 274 S. W. 149; Tuckness v. State, 101 Tex. Cr. R. 483, 276 S. W. 277; Brown v. State, 101 Tex. Cr. R. 495, 276 S. W. 438. A like rule pertains to bills of exceptions. See Borroum v. State, 110 Tex. Cr. R. 243, 8 S.W. (2d) 153.
It is contended that the proof that there was whisky in the automobile was improperly received for the reason that the fact was ascertained by an illegal search. The testimony, part of which was before the jury and part before the judge, is summarized as follows: Brown, a deputy sheriff, while at his home, observed an automobile on a public road about a quarter of a mile away. It appeared to be in the ditch. He got on his horse and rode to the car with the thought of helping to extricate it, and believing from the appearance that it belonged to Dr. Boles. Upon reaching the car, he observed that it was not Dr. Boles' car. After looking in various directions for its owner and observing no one, he, after about twenty minutes, got off his horse and went to the car to examine it in order to ascertain, if possible, its owner. He opened the door and looked in the car to see if there were any papers or anything that would designate the ownership of the car. While looking in the car, he smelled whisky. When he opened the car door, he had no idea of searching for whisky, and had no reason to believe that there was...
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