Mathis v. State, 30612

• Decision Date: 08 April 1959
• Docket Number: No. 30612,30612
• Citation: 167 Tex.Crim. 627,322 S.W.2d 629
• Parties: Aubrey MATHIS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 629

322 S.W.2d 629

167 Tex.Crim. 627

Aubrey MATHIS, Appellant, v. STATE of Texas, Appellee.

No. 30612.

Court of Criminal Appeals of Texas.

April 8, 1959.

Mark Callaway, Brownwood, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

Peace officers went to the home of appellant for the purpose of executing a search warrant authorizing a search for intoxicating liquor.

Appellant was at home and, upon being advised as to the purpose of their visit, told the officers that he had some whisky in the house 'setting on the ice-box.' The officers found 'a half-pint whiskey bottle, and it had a drink or so in the bottle.' They told appellant they were not looking for such a small amount of whisky. One of the officers then asked him for the key to the box in his garage. Appellant gave the officer the key, with which he unlocked the box. Forty-seven pints of whisky and nineteen pints of vodka were found therein.

It was for the possession of that liquor for the purpose of sale in a dry area that appellant was convicted, with punishment assessed at a fine of $500 and three days in jail.

Appellant admitted the possession of the liquor, testifying, however, that he had purchased it upon the advice of his doctor for use in alleviating the heart trouble from which he suffered. He denied that he had any of the liquor for the purpose of sale, and denied that he had ever sold any liquor.

Appellant asserted that he had never been arrested before in his life for any offense.

Three witnesses attested appellant's good reputation for truth and veracity and for being a peaceable and law-abiding citizen.

The state did not challenge that reputation by evidence to the contrary.

There was no testimony suggesting that appellant had, in fact, sold whisky at any time.

The state's case and appellant's guilt depended entirely upon the prima-facie-evidence rule that possession of more than a quart of liquor in a dry area warrants the conclusion that the liquor was possessed for the purpose of sale.

In his charge the trial court instructed the jury in accordance with the defensive theory that if appellant possessed the liquor found by the officers for his own use he would not be guilty.

It is in the light of this fact situation that appellant's bills of exception are to be appraised:

Bill of exception No. 2 certifies that upon the voir dire examination of the jury panel from which the jury to try this case was to be selected the attorney for appellant 'prepared a question to be propounded to the members of the jury panel and proposed to ask the entire panel whether or not any member thereof felt it morally wrong for a person to have in his possession an alcoholic beverage for his own use.'

The objection of state's counsel that the question sought to be propounded was improper was sustained.

The bill of exception was approved without qualification.

It has been long the holding of this court that the constitutional guarantee of the right to be represented by counsel (Bill of Rights, Art. 1, Sec. 10, Vernon's Ann.St.Const.) carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel's judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Barnes v. State, Tex.Cr.App., 88 S.W. 805; Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997; Belcher v. State, 96 Tex.Cr.R. 382, 383, 257 S.W. 1097; and Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839.

In the Plair case, supra, it was held reversible error to refuse the request to interrogate the jurors individually as to their views concerning the...