Gandy v. State

Decision Date12 November 1924
Docket Number(No. 7579.)
Citation268 S.W. 951
PartiesGANDY v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Milam County; John Watson, Judge.

A. Gandy was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

B. P. Matocha and Chambers, Wallace & Gillis, all of Cameron, for appellant.

A. J. Lewis, Co. Atty., of Cameron, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

From a conviction of transporting intoxicating liquor, with punishment assessed at two years in the penitentiary, this appeal is brought.

The indictment sufficiently charged the offense. The state's case showed that appellant was in the town of Milano, in Milam county, on Saturday August 5, 1922. He lived six or seven miles away in the Hanover community and left Milano on horseback, going towards his home late in the afternoon. For reasons not set out in the record, two officers that night went out to a point on the Milano-Hanover road about a quarter of a mile from Milano and secreted themselves. About 9 o'clock that night appellant with his son came from the direction of his home along the public road in a car, whose lights were turned off. It was a bright moonlight night. According to the state's witnesses, when appellant came to a point close to a culvert and not far from the witnesses, he flashed his light and then turned same off again, got out of his car, took a package about the size of a fruit jar wrapped in paper, walked to the end of the culvert and stooped down and put the package in. The officers came up at this juncture and arrested him and upon search found in the end of the culvert a half gallon fruit jar of whisky and also found in appellant's pocket a half pint flask of the same liquid. Appellant claimed that he had bought the half gallon of whisky from a negro in Milano that afternoon who had agreed to leave same in said culvert for him, and he denied having put the package containing the liquor in the culvert, but said he was in the act of taking it out when the officers came up. He also stated that the negro gave him the half pint of whisky in Milano that afternoon, and there seems no dispute of the fact that, if this was so, appellant had conveyed this quantity of liquor about six or seven miles along the public road to his home and back.

On the trial appellant exhibited the following document:

"This is to certify that Mr. A. Gandy has had the flu and I recommend that he should use strychnine or whisky as a stimulant for his heart.

                                   F. E. Liddell, M. D
                                         "March 5, 1922."
                

This he said he kept in his pocket. Asked if he had had it filled as a prescription, he said he had not; that he never bought any whisky on it or strychnine. Asked if at the time of trial in September he had bought any whisky on it, he said no; he guessed he could make out without it. Asked what use he had for the document above quoted, he said in case he was caught with whisky on him he could show he had a right to it because "he told me to drink it for my health." That the above document was not a prescription is plain; that the whole scheme was to aid appellant to escape the consequence of connection with illicit liquor transactions is strongly suggested. However, the trial judge charged the jury as follows:

"If you believe from the evidence that the defendant transported intoxicating liquor along the public road from Hanover to Milano on or about the 5th day of August, 1922, as alleged in the indictment read to you, yet if you find and believe from the evidence that the defendant transported said liquor, if any, only for medicinal purposes for himself, then you will return a verdict of not guilty; if you should find from the evidence that the defendant transported the half pint of whisky exhibited in evidence before you for medicinal purposes only for himself, you will acquit him as to that phase of the case."

Also, in that part of the charge applying the law to the facts of the case, the court told the jury that before they could convict they must believe beyond a reasonable doubt that the liquor in question was not transported for medicinal purposes for the defendant.

There are two bills of exception in the record, by one of which complaint is evidenced of questions to the appellant while a witness as to how often he had gone to the various towns in Milam county. This presents no error. In the other bill complaint is made of a remark of the county attorney during his examination of appellant as a witness. There was no request for an instruction that the jury should not consider the remark and the explanation of the court makes it appear that the remark was entirely harmless.

Appellant asked two special charges which were refused; one a peremptory instruction of not guilty, the other a charge that, unless the liquor was transported for purposes of sale, the jury should acquit. Both were properly refused. Another special charge was asked applying the law of circumstantial evidence to the whole case as made by the proof, which was also refused. There being a dispute over the fact as to whether appellant had transported the half gallon of whisky, and the state's case, if dependent upon the transportation of such liquor being made out by circumstantial evidence, there was no error in the trial court giving the jury the law of circumstantial evidence as applicable to the transportation of said half gallon of liquor, but, there being a direct admission on the part of appellant that he had transported the half pint of whisky, the requested charge applying the law of circumstantial evidence to the entire case was properly declined.

The question of transportation for medicinal purposes was fully submitted as above indicated, and by the jury decided adversely to appellant, and there is ample evidence to justify such conclusion.

The only exception to the charge deemed of sufficient importance to call for any discussion is as follows:

"Because the court erred in presenting that part of the charge to the jury, wherein it is stated that the state relied on circumstantial evidence as to the one half gallon of liquor alleged to have been transported by the defendant, and that the defendant should be acquitted if the jury should find that the defendant transported one half pint of whisky, as follows: (1) Because said charge is misleading and calculated to confuse the jury; (2) Because said charge is on the weight of the evidence."

It is difficult to know what is meant by this. The court below, as above stated, charged the jury, as to the transportation of the half gallon of liquor, that it was a case of circumstantial evidence and gave the usual charge in such case, and beyond doubt, if the offense was made out by the transportation of the half pint of liquor, then the case was not one of circumstantial evidence, and there is nothing in the exception. Appellant contends that the Legislature having given him the right to possess intoxicating liquor for purposes other than sale, he would have the right to accept the bottle, which he says was given him by the bootlegger who sold him the half gallon, and to carry it about his person. This is not the law, and without discussing the probability that the jury accepted none of appellant's claims, but believed that he had gone home that afternoon, gotten all the liquor found on him, and brought it back to the place of arrest, our view of appellant's contention is presented. It seems clear to the writer of this opinion, that, even if the doubtful right of the Legislature to enact a law authorizing possession of intoxicating liquor for purposes other than sale be conceded, still there is no law authorizing the transportation of any quantity of such liquor great or small for beverage purposes, and we would be without right or power to render a decision, the effect of which would be to grant the right to transport liquor for beverage purposes in small quantities; same being a right which is withheld by statute and Constitution.

Sections 1 and 2 of the Eighteenth Amendment to the federal Constitution are as follows:

"Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

"Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."

This has been in effect in the United States since January 19, 1919, and voices the supreme law of the land. Succinctly, this forbids the manufacture, sale, or transportation of intoxicating liquor in any quantity for beverage purposes; and looking to the execution of this mandate, concurrent power is granted to the Congress and the Legislatures of the several states to enforce the purposes of said amendment by appropriate legislation. In different verbiage the amendment to our own state Constitution forbids traffic in intoxicating liquors for beverage purposes, and in subdivision d of said state amendment (Const. Tex. art. 16, § 20) it is declared that intoxicating liquors are subject to the police power of the state, and the Legislature is given power in express terms to pass "additional prohibitory laws, or laws in aid thereof." As we read these constitutional amendments they aim at the prevention of all use of intoxicating liquor as a beverage, and by express grant in the federal amendment of power to the Legislatures, state and national, to pass laws in aid of said purpose, there is thus by implication denied to them any power to pass laws in derogation of or opposition to said purpose. We take it that any law whose fair construction would make its operation a hindrance to or in opposition to the prevention of the...

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9 cases
  • Dunavin v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 28, 1981
    ... ... 102, 247 S.W.2d 253 (1953). It follows, then, that the amount of alcoholic beverage being transported is irrelevant. See Royal v. State, 156 Tex.Cr.R. 492, 244 S.W.2d 239 (1951); Harris v. State, 149 Tex.Cr.R. 610, 198 S.W.2d 459, 460 26 (1946); ... Page 101 ... Gandy v. State, 99 Tex.Cr.R. 143, 268 S.W. 951, 955 (1925) (Hawkins, J. concurring) ...         Finally, the protection of § 107.08 in transporting an alcoholic beverage for one's own consumption from the place of purchase where its sale is legal to a place where its possession is legal is ... ...
  • Wright v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 3, 1930
    ... ... This is not the law. See Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472; Harrison v. State, 95 Tex. Cr. R. 513, 254 S. W. 975; Turner v. State, 95 Tex. Cr. R. 593, 255 S. W. 439; Harper v. State, 96 Tex. Cr. R. 429, 257 S. W. 1102; Bailey v. State, 97 Tex. Cr. R. 312, 260 S. W. 1057; Gandy v. State, 99 Tex. Cr. R. 143, 268 S. W. 951; Brown ... ...
  • Ball v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 29, 1929
    ... ... It is only in possession cases that article 671, P. C., making possession of more than a quart prima facie evidence of guilt, has application. The transportation of any quantity of intoxicating liquor, except for some of the purposes excepted by the Constitution, is illegal. Gandy v. State, 99 Tex. Cr. R. 143, 268 S. W. 951. However, it will be observed from appellant's testimony that he swore "We did buy one gallon of whisky. I paid for that whisky myself. * * * The whisky did come back in the car." In another place, speaking of what occurred after the party got back to ... ...
  • Rangley v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 31, 1928
    ... ...         We think the circumstances were sufficient to show the appellant's guilt. Under the view ... of a majority of the court, it was not necessary to show that he was transporting more than a quart of intoxicating liquor. Gandy v. State, 99 Tex. Cr. R. 143, 268 S. W. 951; Perez v. State, 99 Tex. Cr. R. 489, 268 S. W. 962 ...         The statement of appellant quoted above as to his turning in bootleggers was made while he was under arrest, and was objected to. The bill is qualified by the court to show that it ... ...
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