Terry v. State

• Decision Date: 06 May 1925
• Docket Number: (No. 8764.)
• Citation: 275 S.W. 837
• Parties: TERRY v. STATE.
• Court: Texas Court of Criminal Appeals

275 S.W. 837

TERRY v. STATE.

(No. 8764.)

Court of Criminal Appeals of Texas.

May 6, 1925.

Rehearing Denied October 14, 1925.

Commissioners' Decision.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

Luther Terry was convicted for the possession of intoxicating liquor, and he appeals. Affirmed.

M. W. Burch, of Decatur, and Phillips, Brown & Morris, of Fort Worth, for appellant.

P. L. Gettys, of Decatur, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BERRY, J.

Appellant was convicted in the district court of Wise county for possessing intoxicating liquor for the purpose of sale, and his punishment assessed at 2 years and 6 months' confinement in the penitentiary.

By bill of exception No. 1, complaint is made that the indictment could not be identified by the minutes of the court, because the name of appellant does not appear therein. In this there was no error shown. Article 446, Code of Criminal Procedure; Bohannon v. State, 14 Tex. App. 272; Malloy v. State, 35 Tex. Cr. R. 389, 33 S. W. 1082; Fields v. State, 68 Tex. Cr. R. 606, 151 S. W. 1051; Haynes v. State (Tex. Cr. App.) 83 S. W. 16.

By bill of exception No. 2, appellant complains of the court's charge in defining possession. The definition as given by the court was correct. Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1037.

In this case, the court defined "possession" as "having personal charge of and exercising the right of ownership and control of" the liquor in question. In the Newton Case, supra, Judge Lattimore uses this language:

"We think the court's definition of possession, as applicable to this offense, viz., that it meant having personal charge of and exercising the right of ownership and control of the liquor in question, presents no error."

By bill of exception No. 3, appellant complains of the action of the court in failing to charge on circumstantial evidence. A charge on circumstantial evidence was not required in this case. One-half gallon of whisky was found in the residence of appellant where he and his wife lived, and over which he exercised full control. Under the statute, this was prima facie, evidence that appellant possessed the liquor for the purpose of sale. Section 2e, p. 54, Acts of Second Called Session of the Legislature, 1923; Davis v. State, 98 Tex. Cr. R. 643, 267 S. W. 513; Egbert v. State, 76 Tex. Cr. R. 663, 176 S. W. 560.

Bill of exception No. 4 complains of the refusal of the court to give appellant's special charges; but a careful examination of the court's charge convinces us that every right appellant had in this matter was fully protected.

By bill No. 5, appellant also complains of the court's action in refusing to give a special charge limiting the consideration or effect to be given the finding of the whisky in the car of the witness Layton, and also to the finding of the whisky on the ground where Layton's car was stopped. This charge was properly refused, in view of the charge on this question already given by the court. The testimony shows that Layton had bought the whisky found in his car from the appellant only a short time before the appellant's house was searched, and under these conditions every right appellant had was protected by the court when he charged the jury to the effect that testimony had been admitted to the effect that a car, in which Layton and other persons were riding, had been stopped, and that whisky was found in the car and by the roadside near the place where the car was stopped, and that in that connection the jury was instructed that they could not consider this testimony for any purpose, unless they believed it shed light on the offense with which the defendant is charged, and unless they did so believe they would disregard said testimony for any purpose. We see no material difference between this charge and the one offered by the appellant, to the effect that, before they could consider this evidence, the jury must believe that the defendant had been in some manner connected with the whisky so found.

Bill of exception No. 6 complains of the remark of counsel for the state to the effect that it was thought from what defendant's counsel had said about character witnesses for the defendant in the presence of the jury that they were going to show his good character. This remark ought not to have been made; but, under the authorities in this State, it is not such error as will require a reversal. Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765; House v. State, 19 Tex. App. 239.

Bill No. 7 complains of the charge of the court, and of the refusal to give a special charge, as to the finding of a still at the time in question, on the place that the defendant had rented and was in possession and control of at the time. The witness Kirkman testified that he was in the employ of the defendant, and that he helped construct one of the little houses, and that the defendant had employed him to build it, and there was other evidence showing that the defendant was connected with the operation of this still. The still was right near the home where he was living, and the evidence is ample to show — at least by the strongest kind of circumstances — that he had a guilty connection with it.

By bills 8, 9, and 10 complaint is made of the court's action in refusing to allow the appellant to ask the officers who found the whisky on defendant's premises whether they saw any whisky in his possession, etc. We think that the cross-examination of these witnesses clearly shows that appellant was afforded every right to conduct a fair and reasonable cross-examination of them, and we see no abuse of the court's discretion in the ruling complained of.

By bill No. 13 complaint is made because the court permitted state's counsel to ask the witness Calvert, who was one of appellant's attorneys, and who testified for him on the trial of the case, concerning certain statements that the state's witness Layton was alleged to have made to him in his office, as to Layton's condition with reference to being drunk, etc. This matter is of hardly sufficient importance to require discussion. The bill does not show what the witness' answer was to some of the questions, and the entire matter seems to have been admissible as reasonable cross-examination.

By bill No. 14 appellant complains that the court gave verbal instructions to the jury. This bill shows that while the witness Layton was testifying for the state that he went to defendant's house on the night of the alleged offense about two hours prior to the time the officers searched the premises, and that he then and there asked the defendant if he had any whisky, and the defendant said he did, and Layton told him he wanted a half gallon, and the defendant brought it to him and he paid him $5 for it, whereupon counsel for defendant objected to said testimony, and in admitting it the court made the statement that he would overrule the objection with the explanation that the defendant was on trial here for possession of intoxicating liquor for sale, and that the jury could not convict him for any other offense, and that they could not convict in this case for selling liquor, but if they believed defendant had liquor in his possession on the occasion testified about that they might consider this evidence, if they believed that it bore on the issue as to the purpose for which he had it in his possession, and that they could not use it for any other purpose, and that...