Benson v. State

• Decision Date: 03 October 1923
• Docket Number: (No. 7701.)
• Citation: 254 S.W. 793
• Parties: BENSON v. STATE.
• Court: Texas Court of Criminal Appeals

254 S.W. 793

BENSON v. STATE.

(No. 7701.)

Court of Criminal Appeals of Texas.

October 3, 1923.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Jimmie Benson was convicted of the unlawful transportation of intoxicating liquor, and he appeals. Reversed.

Moyers & Creighton, of Mineral Wells, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, 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 three years.

The evidence shows that J. W. Massey was employed to detect and cause the arrest of persons violating the laws prohibiting the traffic of intoxicating liquors. Massey was a citizen of Fort Worth, Tarrant county, Tex. He entered into an engagement with the sheriff of Palo Pinto county and became a guest in a certain hotel in Mineral Wells. He requested the appellant, who was a negro porter at the hotel, to procure some whisky, and handed him a $5 bill for that purpose. Appellant later delivered to Massey at the hotel a pint of whisky. The whisky was procured at a certain drug store several blocks distant from the hotel by Woodall, who, it seems, was another employee at the hotel. Appellant directed Woodall to go to the drug store and procure the whisky, which he did, and paid $3 for it. On his return to the hotel, he delivered the whisky to appellant; also the $2. Appellant retained $1.75 and gave Woodall 25 cents. Appellant carried the whisky from the point at which it was delivered to him by Woodall to the room of Massey, and there delivered it to Massey, but gave Massey no change.

Appellant insists that the transaction reveals that he was merely the agent of Massey, the purchaser, and is guilty of no violation of the law. The position is deemed unsound.

The term "transport" is not defined by the statute, but in common language it embraces the "conveyance from one place, locality, or country to another." 38 Cyc. of Law & Proc. p. 946.

Appellant and Woodall acted together in conveying the pint of whisky in question from the drug store to the room of the purchaser, Massey, in the hotel. Appellant denied that he retained any of the money given him by Massey. There was evidence supporting the jury's finding to the contrary. According to the state's evidence, appellant's connection with the intoxicating liquor was illegal; his conveyance of it was for an illegal purpose — that of sale. He was not an accommodation actor, but received compensation for what he did. The acts of Woodall were chargeable to the appellant, both being principals.

The indictment charged that appellant did "then and there unlawfully transport liquor capable of producing intoxication." This court has held such an indictment good. See Tucker v. State, 251 S. W. 1090. The views there expressed are adhered to.

In the formation of the jury, appellant asked the venireman Harris if he was a member of the organization known as the Ku Klux Klan. Objection to this inquiry was interposed, and the objection sustained. Exception was reserved thereto. It was held in the recent case of Reich v. State, 251 S. W. 1073, that, under the facts before the court, such an inquiry should have been permitted for the purpose of enabling the appellant to intelligently exercise his peremptory challenges. In that case the facts, authenticated by the trial judge, showed that appellant and his counsel believed that persons on the panel were members of the Ku Klux Klan and that that organization had interested itself and its membership in the conviction of persons charged with crime, and that it was feared that such members, if any, as were upon the jury, and who were members of the organization mentioned, were, by reason of the facts stated, prejudiced jurors. In the case in hand, the court, in qualifying the bill, declines to certify to the recited facts. A large portion of the bill is but a recital of the reasons given by appellant for excepting to the ruling of the court. Such a recital has been uniformly held an insufficient basis upon which to secure the review by this court. See Fuller v. State, 50 Tex. Cr. R. 14, 95 S. W. 541; Bigham v. State, 36 Tex. Cr. R. 453, 37 S. W. 753; Hamlin v. State, 39 Tex. Cr. R. 579, 47 S. W. 656; McKinney v. State, 41 Tex. Cr. R. 434, 55 S. W. 341; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; Benson v. State (Tex. Cr. App.) 69 S. W. 165; Douglas v. State, 58 Tex. Cr. R. 125, 124 S. W. 933, 137 Am. St. Rep. 930; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Overby v. State, 92 Tex. Cr. R. 172, 242 S. W. 213; 2 Vernon's Tex. Crim. Stat. 1916, p. 557, subd. 38.

The bill, however, contains a direct averment that by the examination appellant would have been able to show that some of the jurors were members of the organization mentioned, and that such jurors were prejudiced by instructions given them by the organization to qualify as jurors to convict the appellant. The qualification that the court does not certify to all of the facts does not, in the light of the approval of the bill, controvert the fact that counsel, in making his objection, stated as facts the matters mentioned. In qualifying the bill, the jurors stated...