Erwin v. State
| Decision Date | 07 June 1961 |
| Docket Number | No. 33497,33497 |
| Citation | 171 Tex.Crim. 323,350 S.W.2d 199 |
| Parties | Connie ERWIN, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Tunnell, Bullock & Jeffus, by Byron M. Tunnell, Tyler, for appellant.
Weldon Holcomb, Criminal Dist. Atty., Henry L. McGee, Jr., Asst. Criminal Dist. Atty. Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was convicted in the county court of Smith County of the offense of transporting an alcoholic beverage, to wit, wine, in a dry area. The case was tried before a jury and a verdict of guilty was rendered, with punishment assessed at six months in jail and a fine of $500.
The testimony of witnesses for the state and for appellant reflects that Deputy Sheriff Williams and Everett were patrolling the Van highway beyond the 'Loop' from the city of Tyler when they observed appellant, accompanied by a man by the name of J. W. Lacy, driving a pickup truck and entering the highway from a farm-to-market road 'that comes off the Mineola and Van Highway.'
Officer Williams testified: 'Well, I had the information that he was transporting, coming in out * * *'
The officers stopped appellant, who, with Lacy, got out of the truck and met the officers about half-way between the truck and the officers' car. The officers walked up to the truck, looked in, and found 'a load of cased wine and stuff,' being 'fifteen cases of wine, ten cases of quart beer, and about ten half-pints of whisky in a paper sack.'
Appellant was put in the patrol car and was taken by Officer Williams into Tyler to the sheriff's office. Officer Everett, with Lacy, drove the pickup there. The officers unloaded 'all that stuff' and filed on appellant for transporting wine.
It was appellant's testimony that he had been to Kilgore, where he purchased the wine in question for the consumption of his farm hands, and that, when stopped by the officers, he was going back to his home in Tyler, Smith County.
By brief and oral argument, appellant's very able counsel urges his contentions. The record contains twenty-one formal bills of exception and numerous informal bills.
By his first bill of exceptions, appellant contends that the trial court erred in overruling his exceptions and objections to the court's charge, for the reason that the court failed 'to charge the jury relative to the defensive matter and issue in this case,' and further complaint is made of the failure of the court to 'instruct the jury relative to all of the issues involved in this case' and 'to submit to the jury the defensive issues raised.'
After carefully reviewing the evidence, we find that appellant failed to introduce evidence upon which the jury could base a finding that he purchased the wine found in his pickup truck for his own consumption and that he was transporting it from a place where the sale thereof was legal.
Appellant failed to bring himself under the terms of Art. 666-23a(1), which makes it lawful to transport intoxicants from a place where the sale thereof is legal to a place where the possession thereof is legal.
The evidence does not reflect the wet or dry status of Kilgore, and, at best, is conflicting as to appellant's own testimony as to whether the consumption was to be by him or by his employees. Davis v. State, Tex.Cr.App., 318 S.W.2d 668; Johnson v. State, Tex.Cr.App. 334 S.W.2d 305.
Appellant next complains of the trial court's refusal to require a state's witness to furnish a copy of what is referred to herein as a 'Poop Sheet,' explained as being a written form completed at the time of appellant's arrest and setting out some of the details of the case, including appellant's name, the offense with which he was charged, the date of the offense, and the facts indicating the commission of the offense for which he was arrested.
When request of the 'poop sheet' in question was made by appellant's counsel, the witness did not have such sheet in his possession, nor was he using any notes or memoranda therefrom, the witness's only statement concerning this being that the sheet was seen by him after its completion and that it was 'fixed up' by him and another person referred to as 'Bill.'
The right to see a document or writing does not obtain when such writing is not used by the state before the jury in some way so as to make the contents thereof an issue. Chandler v. State, 60 Tex.Cr.R. 329, 131 S.W. 598; St. Clair v. State, 104 Tex.Cr.R. 423, 284 S.W. 571; Avery v. State, 135 Tex.Cr.R. 557, 121 S.W.2d 992.
Appellant contends that the trial court erred in overruling the objection to the testimony of the state's witness Jernigan, to the effect that Smith County was a dry area.
We find no error in the action of the trial court in overruling the objection. Any harm that was done was cured by the subsequent testimony proving Smith County to be, in fact, a dry area.
Appellant contends that the state failed to prove that Smith County was a dry area and that the trial court erred in overruling his motion for an instructed verdict of 'not guilty.'
The record reflects that the county clerk of Smith County testified directly from the commissioners court records and read, completely, the order requiring the election prohibiting the sale of wine, the order declaring the results of said election, and the publication of the results of the election, giving the volume and page number of the minutes of the commissioners court wherein each of the orders appeared. The clerk testified that since the date of that election there had been no election declaring Smith County a wet area.
It is to be noted that all this testimony was read into the record without objection.
In the absence of a timely objection to the reading of a document to the jury, the parol and best-evidence rules have no application. Testimony read into the record without objection is tantamount to the introduction of the documents from which the testimony was taken. Hillman v. State, 103 Tex.Cr.R. 603, 281 S.W. 874; 18 Tex.Jur., Sec. 230, p. 363.
The state here discharged its duty in showing the dry status of Smith County.
We shall not separately discuss the remaining bills of exception.
Appellant complains of the identification of the fifteen cases of wine, of the...
To continue reading
Request your trial
-
Guadian v. State, 40606
...this evidence, the appellant is in no position to complain of the search. Love v. State, Tex.Cr.App., 373 S.W.2d 242; Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199. However, in view of the contention that the search was illegal on the grounds that it was not reasonable and without proba......
-
Huff v. State, 56093
...it is introduced just as if the prosecutor had the instrument marked and introduced into evidence as an exhibit. Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199 (1961); Hellman v. State, 103 Tex.Cr.R. 603, 281 S.W. 874 (1926). See also Harden v. State, 417 S.W.2d 170, 174 (Tex.Cr.App.1967......
-
Williams v. State, 40575
...a general objection not stating specific grounds thereto. While such objection appears to be legally insufficient, see Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199; Howe v. State, Tex.Cr.App., 380 S.W.2d 615; McLain v. State, Tex.Cr.App., 383 S.W.2d 407, the careful trial court neverth......
-
Artell v. State
...to explore or test the memory of Officer Garcia. I think the rule has been correctly stated by this Court in Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199, wherein we said: 'The right to see a document or writing does not obtain when [it] is not used by the state before the jury in some......