Underwood v. State

• Citation: 39 S.W.2d 45
• Decision Date: 06 May 1931
• Docket Number: No. 13702.,13702.
• Parties: UNDERWOOD v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W.2d 45

UNDERWOOD v. STATE.

No. 13702.

Court of Criminal Appeals of Texas.

May 6, 1931.

Rehearing Denied June 10, 1931.

Appeal from District Court, Hall County; L. S. Kinder, Special Judge.

Ben Underwood was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.

Affirmed.

Hamilton, Fitzgerald & Grundy, of Memphis, for appellant.

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

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The facts show that two officers searched appellant's house and garage with his consent, and found in said garage three half gallon jars of whisky, buried under the dirt floor. Also in the garage there was found a pasteboard carton containing three empty jars like the buried jars which contained the whisky. All were square jars with tops alike. Appellant took the stand and gave substantially the same testimony as to the finding of the jars of whisky as that of the officers, and admitted that the empty jars in the carton belonged to him and were put there by his wife—but denied the ownership, possession, or knowledge of the whisky filled jars. A pint bottle with a small quantity of whisky in it was setting on a table in appellant's house. He said his child picked up this bottle on the road and brought it to the house. He also testified that he had only lived at the place somewhere from one to three weeks, at the time of the raid. No other members of appellant's family were used as witnesses. The officers testified that they had a search warrant which they offered to read to appellant before they made the search.

Bill of exception No. 1 complains of the reception of the testimony of one of said officers, the objection being that the rule had been asked, and that this witness had been excused from the rule by the court and was in the courtroom and heard other witnesses testify. The court qualifies the bill by saying that this witness was the active deputy sheriff waiting on his court. Dobbs v. State, 94 Tex. Cr. R. 398, 251 S. W. 1057.

Bill No. 2 brings up for review the court's action in allowing this same officer to have charge of the jury during this trial; he being a material witness for the state. The same qualification appears on this bill as is on bill No. 1. No effort was made to show any word or action on the part of said officer which did or might influence the jury in any way. We uphold the discretionary actions of trial courts in such matters, unless we are led to believe some injury shown.

The third and last bill of exception sets up that in his opening argument to the jury the district attorney said: "The officers must have had some reason for thinking the defendant had whisky in his possession or they wouldn't have gone out there armed with a search warrant and searched his place."

This was objected to as being upon a matter not before the jury, and as not being a legitimate deduction from anything in the record, and as being an effort to bolster up the state's case, and also an effort to lead the jury to think the officers in possession of evidence against appellant, outside the record.

It...