Shepperd v. State

• Decision Date: 13 June 1934
• Docket Number: No. 16843.,16843.
• Citation: 74 S.W.2d 1027
• Parties: SHEPPERD et al. v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W.2d 1027

SHEPPERD et al. v. STATE.

No. 16843.

Court of Criminal Appeals of Texas.

June 13, 1934.

Rehearing Denied October 17, 1934.

Commissioners' Decision.

Appeal from District Court, Angelina County; C. E. Brazil, Judge.

E. H. Shepperd and another were convicted of the offense of transporting intoxicating liquor, and they appeal.

Affirmed.

E. J. Conn, of Lufkin, and C. C. Chessher, of Groveton, for appellants.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for two years.

Peace officers arrested appellants while they were transporting whisky in an automobile on a public highway in Angelina county. Upon searching the car the officers found therein approximately five gallons of whisky. Appellant Shepperd was driving the automobile.

Appellant Knox testified that the whisky belonged to him. However, his testimony clearly showed that appellant Shepperd acted with him in transporting the whisky. Appellant Shepperd did not testify.

Appellant Knox entered a plea of guilty. As shown in bill of exception No. 1, appellant Shepperd presented to the court a special charge wherein the jury would have been advised that they could not consider the plea of guilty entered by Knox as a circumstance against Shepperd. This charge was refused. The court expressly advised the jury that appellant Shepperd was presumed to be innocent, and that the state was required to establish his guilt by legal evidence beyond a reasonable doubt before he could be convicted. Again, in applying the law to the facts, the court required the jury to believe beyond a reasonable doubt that appellant Shepperd transported the whisky before they could convict him. Knox testified as a witness, not only for himself, but for appellant Shepperd. He sought to exonerate Shepperd by saying that he (Knox) owned the whisky. However, on cross-examination he in effect stated that Shepperd participated in transporting the whisky. Appellant Shepperd was apprehended in the act of transporting the whisky. No testimony raising a defense was interposed upon the trial. If it should be held that it would have been appropriate to give the requested charge, under the circumstances its refusal would not work a reversal of the judgment as the omission was not calculated to injure the rights of appellant Shepperd. See article 666, C. C. P., and Aston v. State, 120 Tex. Cr. R. 534, 48 S.W.(2d) 292.

The other bills of exception found in the record deal with the refusal of the trial court to give certain requested instructions. Our examination of the matters...