Ross v. State
| Decision Date | 02 December 1925 |
| Docket Number | (No. 9604.) |
| Citation | 277 S.W. 667 |
| Parties | ROSS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Harrison County; P. O. Beard, Judge.
Oscar Ross was convicted of the possession of intoxicating liquor for the purpose of sale, and he appeals. Affirmed.
F. M. Scott, of Marshall, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
Conviction is for the possession of intoxicating liquor for the purpose of sale. Punishment assessed is confinement in the penitentiary for one year.
Officers went to the home of appellant, where they found more than four gallons of intoxicating liquor in different places about the premises; some was found in the house and some in the yard concealed. Appellant was on the porch as the officers approached his house, and was recognized by some of them. He passed into the house, and was not present when the officers reached the place. It is shown circumstantially that he escaped out the back door. After discovering the liquor about the premises, the officers followed a well-defined path some 200 yards to a branch, where they found a 50-gallon still, a furnace, and a barrel, which had been used for a cooling apparatus. They also discovered where a barrel of mash had been recently emptied out on the ground.
Sam Ross (appellant's brother) and a woman by the name of Mary Smith were at the house when the officers reached there. Sam Ross testified that it was not appellant who left the house when the officers approached, but another negro. This witness claimed to have been there about 20 or 30 minutes before the officers arrived, and said appellant had not been there during that time.
By a motion to quash appellant assailed the indictment, because it omitted to charge that appellant "unlawfully" possessed the intoxicating liquor for the purpose of sale. We think the indictment not vulnerable to the attack. It charged the existence of facts which, if sustained, show a violation of the law. The failure to insert the word "unlawfully" in the charging part of the indictment does not vitiate it.
Appellant filed a motion for severance, alleging that Mary Smith was separately indicted for the same offense for which appellant was indicted, and requested that she be first put upon trial. This was denied. In approving the bill, the court explains that, when the request for severance was presented, he ascertained that Mary Smith was not in court, and that to have granted such severance would have operated as a continuance of appellant's case. The court was not in error in the particular complained of. Article 651, C. C. P., 1925 Revision (article 727, Vernon's C. C. P.); Anderson v. State, 8 Tex. App. 542; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629; Crane v. State, 91 Tex. Cr. R. 304, 240 S. W. 920.
Application for continuance on account of the absence of Mary Smith was also properly overruled. The application fails to show she had ever been summoned as a witness. If present, she would not have been permitted to testify for appellant, being under indictment for the same offense.
When appellant was called to select a jury, 26 men were in the box available as jurors. Appellant requested the court to supply...
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