Johnson v. State

• Decision Date: 04 November 1914
• Docket Number: (No. 3258.)
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 211

JOHNSON v. STATE.

(No. 3258.)

Court of Criminal Appeals of Texas.

November 4, 1914.

Rehearing Denied December 2, 1914.

Appeal from District Court, Lampasas County; John D. Robinson, Judge.

Cooper Johnson was convicted of crime, and he appeals. Affirmed.

T. S. Alexander and Word & Walker, all of Lampasas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The indictment in this case alleges that prohibition was in force in Lampasas county, and that appellant on or about March 11, 1914, did unlawfully transport, carry, and deliver one quart of intoxicating liquor to Horace Griffin, within prohibition territory in this state from a point within this state to the grand jurors unknown.

Appellant moved to quash the indictment, because the act of the Legislature under which this prosecution was brought was enacted after prohibition had been adopted in Lampasas county, making the same argument as heretofore made that the Legislature was without power to adopt remedial legislation in aid of the enforcement of the prohibition law, and to prevent illegal sales being made. This question was so thoroughly discussed in the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, we do not deem it necessary to do so again. The contention that the Legislature was without power and authority to pass the law was also held adversely to appellant in the Fitch Case, supra. As said in that case, "it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses * * * for the new conditions that may arise" under the prohibition law, and if the new enactment has for its object and purpose to aid in the prevention of illegal sales it is to be commended, and not condemned. As to the constitutionality of what is known as the "Allison Law," this court has heretofore upheld its constitutionality. Ex parte Muse, 168 S. W. 520, and Ex parte Peede, 170 S. W. 749, decided at this term and not yet officially reported.

Neither was it necessary in the indictment to allege the names of the various voting precincts in the county. The allegation that on the 30th day of November, 1910, an election was held under proper authority, and that prohibition has been adopted, etc., was sufficient, without naming the various voting boxes in the county.

The complaint that the indictment charges three offenses, and is therefore void, is, we think, without merit. Section 4 of the Allison law (page 63, Session Acts 33d Leg.) makes it an offense for any person to ship, transport, carry or deliver intoxicating liquor to any other person in prohibition territory, except as otherwise provided in the act. The offense may be alleged to have been committed in all of these ways, and proof that the offense was committed in either of the ways alleged would sustain a conviction. The fact that the pleader could have elected to charge that he committed the offense defined in this section in only one of the ways does not prevent him from also charging that defendant committed the offense in all of the four ways mentioned, by use of the conjunction "and," instead of "or." In Comer v. State, 26 Tex. App. 509, 10 S. W. 106, it was held by this court that if several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. See, also, Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374, 17 S. W. 934; Holman v. State, 90 S. W. 174; Prendergast v. State, 41 Tex. Cr. R. 358, 57 S. W. 850; Morris v. State, 57 Tex. Cr. R. 163, 121 S. W. 1112, and cases cited.

The facts in this case would authorize a jury to find that appellant approached Horace Griffin, who was in Lampasas, Lampasas county, a county where prohibition was in force, and solicited an order for intoxicating liquors, in that he told Griffin he was going after whisky, and asked him if he wanted some. Griffin replied that he wanted two quarts. He then paid appellant $2, and told him he wanted bonded goods, either Hill & Hill or Jersey Cream. Appellant then told him his part of the expense would be 55 cents, and Griffin paid this amount in addition to the price of the whisky. Appellant for some reason did not want to take his valise on the train, and asked Griffin to have Ford Mitchell do so, and this Griffin did. Ford Mitchell carried the grip or valise to the train, and procured Douglass Finley to carry it on the train. This grip had appellant's name on it, and witnesses testify that it was light at this time and did not have anything in it, unless some light clothing. Appellant is traced on this train to Belton, where he tells witness Barnes he is going to Temple. He is traced back from Belton to Lampasas. When he gets back to Lampasas, he hands the valise out of the car window to Ford Mitchell, and then gets off the train. Officer Mace sees Ford Mitchell take the valise out of the window, and, when he attempts to arrest him, Mitchell throws the valise under the train. The officer has Mitchell to secure the valise, and when appellant is apprehended the key to the valise is secured from him, and in the valise are found 12 quarts of whisky — 5 Jersey Cream, 2 Cascade, 4 Sunny Brook, and 1 Hill & Hill, all bonded goods, 2 of which were intended for Griffin. It is thus made apparent that appellant secured 12 quarts of whisky either in Belton or Temple, carried and transported it to Lampasas, and handed it to Ford Mitchell. These facts we think the record shows beyond question.

Bill of exceptions No. 4 is not in the record before us, and in bill No. 5 appellant complains of the fact that the court allowed the district attorney to open the valise in the presence of the jury and introduce it and its contents in evidence, on various grounds. This valise had been identified as the one carried to the depot by Ford Mitchell and placed on the train by Douglass Finley, as the valise handed out of the car window to Ford Mitchell, and which the officer secured from him at the time of the arrest. The officers testified it was in the same condition that it was in at the time it was taken from Mitchell's possession, and under such circumstances there was no error in admitting it and its contents in evidence.

It also appears by another bill that, when Mr. Mace testified that the bottles contained whisky, the defendant objected to him being permitted to so testify, "because the bottles were sealed up," and the contents was the best evidence. The court then permitted the district attorney to unseal one of the bottles and hand it to the witness Mace, who then swore that he knew it contained whisky. As appellant was being prosecuted for carrying, transporting, and delivering whisky in prohibition territory for illegal purposes, there can be no question of the admissibility of this testimony. It would settle, and did settle beyond question, as to what was the contents of the valise.

Appellant also objected to Officer Mace being permitted to testify:

"I saw Ford Mitchell going to the negro coach, and saw a negro's arm handing this grip out to him, and when Ford Mitchell saw him, he (Ford) run and shot the grip under the coach"

— the objection being that it was not shown that it was defendant who handed the grip to Ford. Several witnesses testify that there were but two negroes in this coach when it got to the depot — appellant and John Barnes. John Barnes testified that when he went out of the coach he left appellant, and appellant alone, in the coach. The grip had appellant's name thereon, and by exclusion at least the evidence makes it virtually impossible for it to have been any other person than appellant who handed it out. The facts and circumstances render it as certain as it is possible for circumstantial evidence to show any fact. It excludes every other reasonable hypothesis.

The contention that it was not shown to be appellant's grip cannot be sustained. The evidence, and all the evidence, shows this beyond question. Neither did the court err in permitting the entire contents of the grip, the 12 bottles of whisky, to be introduced in evidence, even though appellant was charged with carrying, transporting, and delivering only one bottle. The evidence was res gestæ of and a part of the transaction alleged.

Appellant objected to the charge of the court in one particular only. The indictment alleging that appellant "did carry, transport, and deliver," he insists the court erred in authorizing a conviction if the jury found appellant "carried, transported, or delivered" — this time contending that the indictment alleged only one offense, and appellant must be shown to have carried, transported, and delivered, all three, before a conviction could be had, while in the motion to quash he had contended that it charged three separate and distinct offenses. As before stated, if several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count, yet a conviction may be had if the offense is committed in either of the ways alleged. Copping v. State, 7 Tex. App. 61. This rule of law has always been followed in this court, and is stated to be the correct rule by Mr. Bishop and other text-book writers.

The court did not err in refusing the peremptory instructions requested, nor did he err in refusing the instructions that if a delivery was not made to Horace Griffin in person to acquit. We are of the opinion that, under the facts and circumstances in this case, the delivery to Ford Mitchell was a delivery to Horace Griffin; but, if that be not a correct deduction from the evidence, a conviction would be authorized under the other means alleged in the indictment of violating the law. We do not think the evidence raises the question of appellant being an agent of Horace Griffin, but, on...