Long v. State, 26318
| Decision Date | 25 March 1953 |
| Docket Number | No. 26318,26318 |
| Citation | 158 Tex.Crim. 651,258 S.W.2d 818 |
| Parties | LONG v. STATE. |
| Court | Texas Court of Criminal Appeals |
Burks & McNeil, by Burton S. Burks, Lubbock, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was charged with the unlawful possession of intoxicating liquor for the purpose of sale in Crosby County, a dry area. Upon his trial therefor he was found guilty and assessed a fine of $800 and 60 days in jail, and he appeals therefrom.
The testimony shows that a 19-year-old Negro boy named Earl Grant lived at a place under the control of Mr. Loyd Parkhill in Crosby County, Texas, and was employed by him. Some few months prior to the trial this Negro boy met Mr. Long, the appellant, who was nicknamed Mr. Chubby, and was kindly treated by him at his gas station in Crosby County. Appellant had made arrangements with this witness to keep some whisky for him at this Negro's house. On October 5, 1952, the witness had a quantity of whisky there which seems to have been under the control of and claimed by the appellant. However, this whisky was not brought to the place by the appellant but by another party, and appellant asked the Negro to keep the whisky for him which he did, and he claimed that appellant had four loads of whisky stored there on the date set forth in the information. This whisky was brought in at different times and contained about 20 lugs, a lug consisting of 6 pint bottles of whisky. Eventually, the Negro moved a portion of this whisky to another place near a lake. Appellant came to the house and took whisky therefrom until the same was moved. Sometimes he would take a case, sometimes a lug, and sometimes two lugs. The whisky was Old Quaker, Stillbrook and White Swan. The witness had drunk part of it and said it was whisky. He was paid $8 in cash and given a little gas and a little oil. That is all he got for keeping this whisky.
The wife of the witness Earl Grant testified that appellant got some of this whisky from her house; that the appellant did not bring that liquor out there.
The third witness was Mr. Loyd Parkhill, the landlord of this Negro, Earl Grant. He testified as follows:
'I know the defendant in this case. I had a conversation with the defendant on or about the 5th day of October. I saw him about three different times. Well, when I drove up he was leaving and met me and got out of his car and said, 'Loyd, I did not put this here', and I said, 'It's yours, isn't it?', and he said, 'Yes, but it's supposed to go to Slaton and not supposed to be sold here', and I said, 'I don't care whose it is, just keep it off my place and leave my Negroes alone.''
Appellant placed no witnesses upon the stand, and the above is practically all of the State's case.
Appellant has many bills of exception in the record, the first one being because of the fact that after both sides had closed and before the jurors were leaving for their noon-day meal and while they were still in the jury box, the court verbally instructed them as follows:
Appellant immediately moved for a mistrial upon the giving of this oral instruction to the jury, claiming that the remarks of the court were so prejudicial as to require a mistrial, and asked the court to discharge the jury because of these remarks, that is, in telling the jury in substance to take this case as a serious matter. We think the court had a right to protect the sanctity of the trial and to keep the jury from any misconduct that they might inadvertently fall into without the intent to do so. We see no objection to the court telling the jury not to discuss this matter with anybody or let anyone discuss the matter with them until the charge had been read and the case had been turned over to them for final decision.
Appellant complains of Paragraph 6 of the court's charge which reads as follows:
'You are further charged that possession, as the same is hereinabove defined, need not be exclusive in a single person; that two or more persons may be co-possessors of liquor for the purpose of sale.'
In lieu thereof appellant offered a special charge which, among other things, contains the following sentence: 'Possession need not be exclusively in one person; it may be in two or more.' We find ourselves unable to see any serious difference between the paragraph of the charge first above quoted and the defendant's requested Charge No. 2 from which the second quotation above is taken.
Objection is also made to Paragraph 5 of the court's charge which...
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