Kelly v. State

• Decision Date: 20 June 1923
• Docket Number: (No. 7705.)
• Citation: 252 S.W. 1065
• Parties: KELLY v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 1065

KELLY v. STATE.

(No. 7705.)

Court of Criminal Appeals of Texas.

June 20, 1923.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Cicero Kelly was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.

W. H. Forrester and Method Pazdral, both of Waco, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of McLennan county of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.

Appellant's bills of exception Nos. 1 and 2 complain of the lack of sufficient testimony, one being to the overruling of the motion for new trial on this ground and the other to the refusal of a peremptory instruction of acquittal. A bill of exceptions to the refusal of a new trial because of the insufficiency of the testimony, or to the refusal of a special charge for an instructed verdict for the defendant, is not necessary to bring before us a review of the testimony. We are required by our statutes to read the statement of facts in every case, and if we do not believe the facts support the verdict, it is our duty to reverse the case. In any case it is sufficient to raise this question in a motion for new trial, and it is not necessary to set out in that connection what the testimony is.

We have examined carefully appellant's bills of exception Nos. 3, 4, 5, and 6, and do not think they show any error. That one is found in possession of intoxicating liquor of such quantity as to raise the presumption in the minds of the jury that he has it for purposes of sale does not seem to us unreasonable. The fact that one is found in possession of the machinery with which liquor can be made, and the containers in which it is commonly sold, and the mash out of which it is made, seem provable facts when the question directly at issue is the possession for the purpose of sale. In the instant case, in addition to finding the paraphernalia mentioned, a considerable quantity of whisky was found in appellant's possession, and when he came to his premises shortly after this finding by the officers he said that he would have to be credited for one thing: He was making good stuff; he was not putting out stuff that would poison and kill people. We observe the various parts of the still were disconnected and some of them buried underground. The barrels of mash were under the floor. We would not hold evidence of these facts inadmissible nor that the evidence was not sufficient to support the conviction.

The law gives to the accused the right to testify, article 790, C. C. P., but provides that his failure to do so shall not be taken as a circumstance against him, nor shall it be alluded to or commented on by counsel in the cause, and many cases are cited under article 843 of Mr. Vernon's C. C. P. wherein this court has reversed cases for violation of this statute. Our books are full of cases also where the jury discussed the failure of the accused to testify, and this has been held to require reversal. Such misconduct was set up in the instant case. The affidavits of certain jurors were appended to the motion for new trial. Issue was joined on the matter and the court heard evidence upon the presentation of the motion. All the jurors who sat in the case testified. We quote parts of their testimony. We also recognize that when issue is joined before the trial court in matters of this kind and he hears the evidence and renders judgment, he has large discretion which ordinarily will not be reviewed by us, but in this case there seems no dispute of the fact that the failure of the accused to testify was discussed; the only question being as to how much it was discussed. The quotations speak for themselves. Juror Newman testified that after the jury had been to lunch and came back some one said that if appellant had not been guilty he would have gotten on the stand and testified in his own behalf. Somebody replied to that; there was some discussion. There was more or less discussion among the jury. This juror further stated in regard to this matter:

"It was in my mind, and after they said what they did I could not get it out of my mind."

Juror Zeigler testified:

"In the course of that discussion there was some discussion in the jury room among the jurors on the question of the defendant not taking the stand and testifying in his own behalf. Some of them said, `Why didn't he take the stand for himself?' The jury discussed the matter about the three barrels of mash that the officers found concealed in the yard, and one remarked, `Well, why didn't he get on the stand and say that mash was for his hogs?' I said in a kind of a laughing way, `Well, maybe he can't talk, I don't know'— in a laughing way, you know, joking way. I heard some discussion to the effect that he must be guilty or he would have taken the witness stand."

Juror Hatter testified:

"I don't know whether you would call it a discussion or not. They said it looked like if he was not guilty he would have got up in his own behalf and testified in his own behalf. I won't be positive about it, but it seemed like there was something said about it looked like he would have a witness or testify himself that there was no sale made."

Juror Moran testified:

"The matter must have come up in the afternoon about the defendant not testifying. We discussed the case for four or five hours. It was along in the neighborhood of 5 o'clock when we reached a verdict. My recollection is that two or...