Johnson v. State, 14376.

• Decision Date: 17 June 1931
• Docket Number: No. 14376.,14376.
• Citation: 42 S.W.2d 421
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W.2d 421

JOHNSON v. STATE.

No. 14376.

Court of Criminal Appeals of Texas.

June 17, 1931.

Rehearing Denied October 21, 1931.

Appeal from Criminal District Court, Jefferson County; R. L. Murray, Judge.

Willie Johnson was convicted for transporting intoxicating liquor, and he appeals.

Affirmed.

D. E. O'Fiel, of Beaumont, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

Appellant was walking along a public street carrying a package. Officers observed him, and suspected that he was carrying whisky. They stopped him, took the package from him, examined same, and found it to contain a gallon of corn whisky. Appellant defended upon the proposition that as he was going along said street a boy handed the package in question to him, and that he did not know what was in it. The officers testified that, when they asked appellant in regard to the package and its contents, he informed them it contained a gallon of whisky. Appellant took the witness stand, and testified that the boy referred to handed to him said package, and that he did not know what its contents were. The statement made by appellant to the officers would appear to be res gestæ of his possession and transportation of the liquor in question, and admissible under that theory. Bills of exception complaining of the admission of testimony are of no avail when it appears from the record that the accused himself gave substantially the same testimony. The proposition as to whether certain liquor is intoxicating is not one which demands expert testimony.

We are not impressed by the bill of exception complaining of the fact that the court lectured another party who had been given a suspended sentence, in the presence and hearing of the jury panel. The jury trying this appellant saw fit to give him the lowest penalty for the offense charged, and nothing manifests any prejudice on their part.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The appellant was arrested by Officers Brown and Davis. Their testimony is thus summarized: The officers were looking for the appellant, and saw him walking on the street carrying a paper bag in his hand. There was a boy with the appellant. The officers had a "pretty good" idea as to what the bag contained, but could not tell its contents. The officers got out, approached the appellant, and said, "What is that, Willie?" He said, "A gallon of whisky." This statement was made after the appellant had been stopped by the officers, who had no warrant for the arrest. One of the officers testified: "When I saw him with this peculiar package, it attracted my suspicion he was carrying whisky. I knew in my mind when we drove up there what was in the package."

The appellant conducted a cold-drink stand, and the boy with him said that he went to the appellant's place and ordered a gallon of whisky for a woman. The arrest occurred about a block from the appellant's place of business.

The appellant's testimony is in substance as follows: He was traveling on the street and "fell in" with a boy who had a package in his hand. Two officers drove up and said to the boy: "Hey, where are you going, boy?" Appellant and the boy were going in the same direction. When the officers spoke to the boy, he handed the package to the appellant, whereupon the officers said: "Get in the car. You, too, Willie, the Chief wants to talk to you." Officer Brown took the package, together with the appellant and the boy, to the police station. Appellant denied telling Brown that the package contained whisky, and said that when he got the package he did...