Nichols v. State

• Citation: 260 S.W. 1050
• Decision Date: 09 April 1924
• Docket Number: (No. 7594.)
• Parties: NICHOLS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

260 S.W. 1050

NICHOLS v. STATE.

(No. 7594.)

Court of Criminal Appeals of Texas.

April 9, 1924.

Appeal from District Court, Wood County; J. R. Warren, Judge.

Ed Nichols was convicted of manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

Shields & Anthony, of Grand Saline, and Jones & Jones, of Mineola, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Manufacturing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of four years.

The state's witness McElroy testified that he observed the appellant and his son, Denny Nichols, making whisky; that a few days later he saw the appellant and his son take some whisky across the river in a boat and saw the appellant return with a quantity of money and say that he had made a "good haul." Appellant asserts that in the receipt of evidence of the latter transaction, the rule against proving collateral offenses was transgressed. There is a general rule of evidence which forbids the use against one on trial for a specific offense of evidence of other crimes committed by him. Underhill on Crim. Ev. (3d Ed.) § 150. This rule, as shown by the citations under the text mentioned, obtains in all jurisdictions where the rules of common law prevail. The exceptions to this rule, however, are numerous.

"If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme." Underhill on Crim. Ev. (3d Ed.) § 152.

A general statement with reference to the exceptions to the rule is made by Mr. Branch in his Ann. Tex. P. C. § 2347, thus:

"Proof of other offenses is admissible if such proof is a part of the res gestæ of the alleged offense for which defendant is being tried, or if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory."

The law denounces as unlawful the manufacture, sale, and transportation of intoxicating liquor, also its possession when for the purpose of sale. Acts 37th Leg. 1st Called Sess. (1921) c. 61, § B (§ 1) [Vernon's Ann. Pen. Code Supp. 1922, art. 588¼]. The related nature of these offenses and the many instances in which the single act might sustain a prosecution under one or several of them has imposed upon the bench and bar a somewhat new and quite difficult task in adjusting the application of the rule and exceptions under consideration to violations of the provisions of the statute mentioned.

Touching some of the offenses denounced, proof of one necessarily establishes the other, and the conviction of one bars a prosecution for the other. See Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165. The proof which shows the manufacture of intoxicating liquor frequently necessarily reveals its possession; proof of the sale often includes the transportation and possession; and so, proof of transporting often includes proof of other transactions under the article denounced by statute. The intimate relation of these crimes and the nature of the evidence which develops them, as stated above, increased the difficulty of keeping the evidence of other offenses within the terms of provisions of the law excluding collateral crimes and the exceptions thereto, and necessarily the application of these rules in a given case are controlled by the other facts which are put in evidence in the prosecution or defense of the case.

In the present case, the state's witness testified that at a certain place he saw a still in which the whisky was manufactured by the appellant and his son. The son was not present at the time of the trial. Appellant specifically denied the transaction and combatted the truth of the testimony of the state's witness by putting in evidence much testimony concerning the presence of the accused and the description of the equipment and the locality of the still, inconsistent with the testimony given upon the trial. The general reputation of the state's witness for truth and veracity was also vigorously assailed.

In addition to these methods of attack upon the state's case, evidence was introduced by the appellant that the prosecuting witness was under indictment for felonies and that the state's witness and Denny Nichols possessed and operated the still in question. In the light of these various matters must be determined the propriety of the receipt in evidence of the testimony to the effect that the appellant and his son, Denny Nichols, had carried whisky across the river in a boat and sold it. In other words, under the evidence detailed, did the testimony last mentioned become admissible under any of the exceptions to the rule excluding extraneous crimes? Instances of cases where the offense charged is manufacturing intoxicating liquor, evidence tending to show a violation of other provisions of the law prohibiting the various phases of the liquor traffic have been received, are numerous: Taylor v. State, 17 Ala. App. 579, 88 South. 205; Richardson v. State, 23 Ariz. 98, 201 Pac. 845; Lowery v. State, 135 Ark. 159, 203 S. W. 838; Thielepape v. State, 89 Tex. Cr. R. 493, 231 S. W 769; State v. Douglas, 122 Wash. 387, 210 Pac. 778. The presence of intoxicating liquor near the place: Dozier v. State, 17 Ala. App. 609, 88 South. 54; Battles v. State, 18 Ala. App. 475, 93 South. 64. Circumstances showing the connection with the still upon land other than his own: Mitchell v. State, 18 Ala. App. 119, 89 South. 98. See, also, Patterson v. State, 140 Ark. 236, 215 S. W 629; Marsh v. State, 146 Ark. 77, 225 S. W. 7; Higgins v. State, 136 Ark. 284, 206 S. W. 440; Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391; Jackson v. State, 82 Tex. Cr. R. 383, 200 S. W. 150; Mayfield v. State, 160 Ark. 474, 254 S. W. 841; Ferguson v. State (Tex. Cr. App.) 255 S. W. 749; Moore v. State, 94 Tex. Cr. R. 546, 252 S. W. 168; Lamm v. State, 94 Tex. Cr. R. 560, 252 S. W. 535; Mince v. State, 94 Tex. Cr. R. 572, 252 S. W. 564; Kelly v. State (Tex. Cr. App.) 252 S. W. 1065; Newton v. State, 94 Tex. Cr. R. 382, 251 S. W. 240; Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. W. 1054; Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036; Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Freeman v. State, 93 Tex. Cr. R. 436, 249 S. W. 466; Pulliam v. Commonwealth, 197 Ky. 410, 247 S. W. 366; Reub v. State, 93 Tex. Cr. R. 345, 247 S. W. 867; Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Copeland v. State, 244 S. W. 395; Anderson v. State, 91 Tex. Cr. R. 183, 238 S. W. 221.

That the still had been operated at the place indicated by the state's witness is not seriously combatted. The identity of the operators became a question through the appellant's defensive theory that the operators were the state's witness and the son of the appellant. This was opposed to the state's position that the operators were the appellant and his son. The state's testimony to the effect that there was a quantity of whisky (the fruit of the crime of manufacturing) at hand was not controverted; nor was the fact that the appellant's son was one of the offenders. Considering the appellant's testimony denying that he manufactured the whisky and the various attacks made by him upon the credibility of the witness relied upon by the state and the other defensive evidence mentioned, was it not relevant and competent that the state show that near the time and place at which the offense was committed, the appellant, in connection with his son, one of the conceded actors in the commission of the offense, was in possession of articles such as the still produced and engaged in selling it and conveying it to the purchaser? We think this question should be answered in the affirmative, and that such answer is consistent with the rule quoted from Mr. Branch announcing the prevailing exceptions in this state and in harmony with many of the cases to which reference has been made in this opinion. This court has no desire, in fact, it is concerned to avoid any extension of the exceptions to the law opposing the receipt in evidence of collateral offense, but is constrained to the view that under the rule and the exceptions as they have heretofore been established, the evidence in question was not improperly received. It may be conceded that in introducing it, the state was premature; but the subsequent conduct of the case upon the part of the accused having rendered the testimony relevant, the immature receipt of part of it was not error justifying a reversal of the judgment. Gregory v. State, 92 Tex. Cr. R. 581, 244 S. W. 615.

The jury should have been made to know by appropriate instruction that the evidence of the transportation and sale of intoxicating liquor could not be used against the appellant to convict him of offenses with which he was not charged. Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812; McCall v. State, 14...