Moneyhun v. State, 26639
| Decision Date | 25 November 1953 |
| Docket Number | No. 26639,26639 |
| Citation | 263 S.W.2d 266,159 Tex.Crim. 317 |
| Parties | MONEYHUN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Ash & Abbott, Theo. Ash, Abilene, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
Appellant was convicted of the offense of unlawfully possessing beer in a dry area for the purpose of sale and was by the jury assessed a fine of $200 and confinement in the county jail for 30 days.
Bill of Exception No. 1 complains of the action of the Court who failed to place Mr. Ed Powell, Sheriff of Taylor County, under the rule, but permitted him to remain in the court room and hear the testimony of the other witnesses during the trial. Usually, the sheriff of the county, unless for some peculiar reason, is to be excused from the rule in order that he might attend to business of the court as well as other matters that might arise during the trial of the case. There is no showing herein that the appellant was injured in any way by the sheriff's presence in the court room.
All the witnesses testified that upon a search of the appellant's home under a search warrant they found sixteen 12-ounce cans of beer in a small ice box in the front room near where the appellant was lying on a bed; that a man was sitting near the appellant with a can of beer in his hand; that as the officers were entering the house three men were leaving it; that there was the odor of alcohol upon the breath of one of them, the others not being close enough to tell; that there was one empty case of beer sitting near the ice box, which box contained ice water and sixteen cans of beer. There were many empty cases in the barn or shed near the appellant's house which were introduced in evidence by the State.
Bill of Exception No. 2 seems to be a motion for an instructed verdict which we think the court properly overruled.
Bill of Exception No. 3 relates to the action of the County Attorney in requesting the officers to bring into court four cases of empty beer cans, eight or nine empty bottles, some of which had whisky labels on them, for the purpose of introducing these articles in evidence before the jury and placing them on the table in the presence of the jury. Appellant objected to their introduction before the jury, claiming that same were prejudicial and inflamed the minds of the jury against the appellant. The court overruled this objection and permitted the officers to bring these articles into court and place before the jury four cases of beer cartons supposedly containing empty beer cans, eight or nine 4/5 quart bottles, some of which had whisky labels on them, and one 1/2 pint bottle with about one ounce of fluid in it. They were objected to again, and appellant saved his bill to the fact that they were placed in the presence and sight of the jury. However, it is shown from the testimony of the witnesses that such articles as herein mentioned were found on the premises of the appellant at the time of the search.
Bill No. 4 relates to the fact that the articles mentioned in the preceding bill were allowed to remain in the court room in the presence of the jury during the trial and were used as evidence by the jury, so appellant claims, in arriving at their verdict. Appellant then offered an objection...
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