Benson v. State

• Decision Date: 27 October 1926
• Docket Number: (No. 8569.)
• Citation: 287 S.W. 1097
• Parties: BENSON v. STATE.
• Court: Texas Court of Criminal Appeals

287 S.W. 1097

BENSON v. STATE.

(No. 8569.)

Court of Criminal Appeals of Texas.

October 27, 1926.

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

Jimmy Benson was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

John W. Moyers, of Mineral Wells, for appellant.

Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

HAWKINS, J.

Conviction is in the district court of Palo Pinto county of transporting intoxicating liquor; punishment fixed at one year in the penitentiary.

There are five bills of exception. The first complains of the refusal of a special charge wherein it was sought to have the jury told that it would not be a violation of the law to convey intoxicating liquor from one part of the hotel building to another. This is not the law. Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 793. The second and third bills complain of the refusal of special charges to the effect that one who transported liquor for accommodation without pay violated no law. We find no such provision or exemption from guilt in the statute.

The fourth bill complains of the court's refusal to give appellant's special requested charge No. 4. We think the court was justified in refusing the charge in the form presented. After setting out what was deemed to be certain defensive issues in a manner not free from objection, the charge also contained the following: "In passing upon this question you will consider same from the standpoint of defendant." We are aware of no law which requires the court to direct the jury that in determining an issue of fact they must pass upon it from the standpoint of the defendant, save where an accused is defending upon the ground of apparent danger, in which case it is proper to tell the jury they should determine that issue from the standpoint of defendant at the time he acted. Lewis v. State, 89 Tex. Cr. R. 345, 231 S. W. 113. Appellant also requested special charge No. 5, which is upon the same subject as special charge No. 4. The refusal of special charge No. 5 was not made the subject of exception by notation on the charge itself, nor by complaint of its refusal brought forward by formal bill of exception. We are therefore unauthorized to consider said charge. Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491, and authorities therein collated.

The only other question raised is as to the purported objections to the court's charge. There appears in the record a document styled, "Exceptions and objections to the court's charge." The only indorsement or notation thereon is as follows: "10 — 23 — 23. Refused. J. B. Keith, Judge." The caption of these purported exceptions is identical with that found in the record in Gibson v. State, 88 Tex. Cr. R. 281, 225 S. W. 538, as is also the notation of the judge. In the Gibson Case relative to objections to the court's charge in such condition, we said:

"Referring to our ruling upon his objections to the charge of the court, in which we said we could not consider the same because not properly verified, appellant insists that the caption of the paper purporting to set forth such objections is as follows: `Now comes the defendant, and before the court has read and delivered his charge to the jury, and makes the following objections to the court's charge.' And the contention is made that this is sufficient, and also that the trial court indorsed on said paper, `Refused,' by mistake. In the Salter Case, 78 Tex. Cr. R. 325, 180 S. W. 691, it was held, in an opinion written by the presiding judge of this court, that, where exceptions are taken to the charge before being read to the jury, same must be verified in some way so as to inform this court that such procedure actually occurred. The fact that the caption of the paper purporting to contain such exceptions recites that it contains the objections presented before the charge was read is not a verification by the trial court of the fact of such presentation, and unless there be some such verification apparent on the paper, or else we be so informed by a bill of exceptions approved as the law directs, we would be compelled to hold that we could not consider the matter urged as...