Duncan v. State

• Decision Date: 06 February 1929
• Docket Number: (No. 12013.)
• Citation: 13 S.W.2d 703
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 703

DUNCAN v. STATE.

(No. 12013.)

Court of Criminal Appeals of Texas.

February 6, 1929.

Commissioners' Decision.

Appeal from District Court, Young County; E. G. Thornton, Judge.

Charlie Duncan was convicted for possession of intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.

Binkley & Binkley, of Graham, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for possession of intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

Two officers claimed to have seen appellant drive a car into a gin yard early in the night. Appellant was night watchman at the gin. The car did not belong to him. Jack Duncan owned the car. The officers reached the yard a short time after the car was driven in, and testified that appellant was in the car and Mack Reeves standing beside it when they arrived. When the officers started to search the car, appellant threw a half gallon jug of whisky out and broke it. Another half gallon of whisky was found in a tool box in the back seat. Appellant and the officers became involved in a difficulty, the evidence being conflicting whether they or appellant struck the first blow. After arresting appellant, the officers placed him in their car, and when they started away he jumped out, ran, and was shot by one of the officers, who claimed that he was not trying to hit appellant, but was only shooting to stop him, and that the bullet glanced from the ground and accidentally hit him. Appellant explained his effort to escape on the ground that the officers had already "beaten him up." One of the officers testified that, when he asked appellant what he had in the car, he said, "Nothing," and the other officer's evidence was that appellant said he had "some whisky to drink." We quote from appellant's testimony as follows: "I was the night watchman at the Webb Gin Company. I went to work a few minutes after six o'clock on the evening in question. I did not leave the premises after I went to work. I remember the occasion of the officers coming down there. * * * That car did not belong to me, neither did that whisky, neither did I drive the car up there. The first I knew of the car being there was a few minutes before they drove up. Mr. Reeves was in the car when they drove up there, and I was in the car with him. Mr. Reeves was sitting in the car with me when they drove up. As to what happened when they drove up there, Mr. Anderson was at the rear and Mr. Langford was at the front of the car, and Mr. Anderson says `I want to look that car over;' I got out of the car. I looked down on the floor of the car when I got out; there was something there, I don't know whether it was whisky or not, I didn't taste of it; anyway, I didn't want my brother to get in trouble or anything, it was his car, so I just pitched it out on the scales, and Mr. Langford hit me over the head with his gun, then Mr. Anderson run up and hit me two or three times, and that was about all the words that was said. * * * That whisky did not belong to me, neither did the car. I first learned that the car was there when I come from the engine room from filling up the boiler. Mack Reeves was there then. I walked into the office to get my clothes, — to change my clothes and go to work upstairs, and Mack says, `What's your hurry,' he was sitting in the car. I...