Tro v. State

• Decision Date: 26 June 1925
• Docket Number: (No. 7863.)
• Citation: 274 S.W. 634
• Parties: TRO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 634

274 S.W. 634

TRO v. STATE.

(No. 7863.)

Court of Criminal Appeals of Texas.

June 26, 1925.

Appeal from District Court, Roberts County; W. R. Ewing, Judge.

Pete Tro was convicted of transporting intoxicating liquor, and he appeals. Reversed and remanded.

Hoover, Hoover & Willis, of Canadian, for appellant.

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

HAWKINS, J.

Appellant was convicted, in the district court of Roberts county, of transporting intoxicating liquor, and his punishment fixed at 2 years in the penitentiary.

On the morning of the day in question appellant was seen driving his car along a road about a half mile from the town of Canadian. Another man was with him. Appellant drove 300 yards past the house of a witness and stopped the car, and the man accompanying appellant got out of the car and went in a stooping position to a point 18 or 20 feet from the road. At this point he stopped, turned, and came back to the car, which was then turned around and came back past the house of witness and thence in the direction of Canadian. According to the testimony of this witness, the car was appellant's, and he was driving it at the time, which was fixed at between 6 and 7 o'clock in the morning, just about sunup. Shortly after the car had gone back to town, witness went to the place where it had stopped and observed tracks leading from the point where the car stopped to a trash pile and from there back to the car. Examining said trash pile, witness found in it a bucket containing a jar with liquid in it, the whole covered by a rag thrown over it. Witness communicated with the sheriff, who presently came with a deputy. The sheriff took from the jar a sample of the liquor therein, which by test was shown to be whisky containing about 60 per cent. alcohol. The deputy sheriff was left at a nearby place, and watched until later in the day appellant returned in another car, went to the trash pile, picked up the jar of whisky, and started with it toward the car in which he had just come. The officer gave chase, and just before he overtook appellant the latter broke the jar upon a culvert at the roadside. The court submitted the case to the jury upon a charge on circumstantial evidence, and in our opinion the facts stated fully warranted the judgment of conviction.

There is but one bill of exceptions in the record, which was taken to the argument of state's attorney, in which he said substantially that, when men got into a criminal case like this defendant had, they would go to Newton Willis (appellant's attorney) to get them out of it, and that men would say, when they were arrested for a criminal offense, "Well, I will just go down to Canadian and hire Newton Willis; he will get me out of it." The bill of exceptions shows that when appellant objected to this argument the trial court told the state's attorney to stay in the record and told the jury not to consider the argument. Not enough importance was attached to it to cause appellant to ask any written charge regarding the matter. This is ordinarily held necessary. Schroeder v. State (Tex. Cr. App.) 36 S. W. 94; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Carver v. State, 36 Tex. Cr. R. 552, 38 S. W. 183; Gent v. State, 57 Tex. Cr. R. 414, 123 S. W. 594; Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; Young v. State, 19 Tex. App. 536. We would not be inclined to hold it of that material character that would call for a reversal. We think the indictment sufficiently charged an offense, without any allegation as to the place to or from which the liquor was transported.

The fourth paragraph of the court's charge reads as follows:

"The state is not required to prove in the first instance that the transportation of spirituous, vinous, or malt liquors, or intoxicating liquors, or medicated bitters, capable of producing intoxication, was not either for mechanical, medicinal, scientific, or sacramental purposes, but when the evidence shows, if it does show, that the defendant transported such liquors or medicated bitters as alleged in the indictment, then the burden is upon the defendant to show that such transportation was either for mechanical, medicinal, scientific, or sacramental purposes."

This charge was excepted to — first, on the ground that, it being alleged in the indictment that the transportation was not for any of the excepted purposes, the state was bound to prove such facts. This exception is not tenable. Prior to the amendment to the present liquor law placing the exceptions in a separate article it was held that, although the state was bound to negative the exceptions in the indictment, it was not necessary to prove the same; they being a matter peculiarly within the knowledge of a defendant. Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89. Under the law as now amended, it is not necessary to negative them at all. The second ground of exception to said charge was that it was on the weight of the evidence, and intimated that the defendant had transported the liquor unlawfully; third, that it intimated that, if the defendant did not show that the transportation was for one of the excepted purposes he should be convicted; and fourth, that it was calculated to confuse the jury as to the burden of proof being contradictory of other parts of the charge on that subject. The three last exceptions may be considered together.

There was no evidence calling for the charge in question, and it should not have been given. There is not a word of testimony claiming or even suggesting that the liquor was being transported for one of the excepted purposes. Appellant introduced no evidence whatever, but stood upon his plea of "not guilty." The propriety of a charge to the effect that the "burden of proof" is on the defendant under certain circumstances was considered in Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Milam v. State, 66 Tex. Cr. R. 249, 146 S. W. 185; Kuhn v. State, 34 Tex. Cr. R. 85, 29 S. W. 272; Blair v. State, 26 Tex. App. 387, 9 S. W. 890; Leonard v. State, 7 Tex. App. 417; Jones v. State, 13 Tex. App. 1; Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89. The Jones Case, supra, reviews the authorities on the subject up to the time that opinion was delivered, and may be regarded as one of the leading cases on that point. After discussing former opinions, Judge Willson says:

"When the defendant pleads `not guilty,' and does not rely upon any matter as a defense which is separate and distinct from, and independent of, the facts constituting the offense, the burden of proof does not rest upon him to prove anything, and in such cases it would be error to give in charge to the jury article 51 [now 52] of the Penal Code."

There is no principle of law better established than that accused is entitled to a distinct and affirmative charge as to any special defense he may have; also that a charge should not be given which is inapplicable to the evidence, or which presents a defense or an issue not made by the evidence. We cite no specific authority on this point, as it is so well established as to be unnecessary to do so, but in note 1, under article 735, Vernon's Criminal Statutes, vol. 2, will be found two pages of cases collated on the points mentioned. There was no necessity to give the charge complained of in so far as appellant's rights were concerned, because he asserted no such affirmative defense as claiming the transportation of the liquor in question to have been for one of the excepted purposes, and because there was no such defensive issue, nor any evidence relative thereto; the charge was not called for and should have been omitted. There was no specific exception to the charge, because no such issue was raised by the evidence, but the exception that it was "confusing" brings the matter before us for review, because one of the very things which made it confusing was the absence of any evidence upon which to base it, leaving the jury at a loss to know how to appropriate and apply it.

In Robert v. State, supra, a charge almost in the same words as the one here given, was considered, but the question then before us was not the form of the charge, but whether, under the law as then written, the state was required to assume the burden of proving the exceptions which it was then necessary to allege in the indictment. The Robert opinion in this respect may have been misleading and have justified the learned trial judge to use the form of charge therein copied, if it had been necessary to charge upon that issue at all in this case. In Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895, another charge similar in language to that set out in the Robert opinion was...