Walling v. State

• Decision Date: 04 April 1923
• Docket Number: (No. 7586.)
• Citation: 250 S.W. 167
• Parties: WALLING v. STATE.
• Court: Texas Court of Criminal Appeals

Page 167

250 S.W. 167

WALLING v. STATE.

(No. 7586.)

Court of Criminal Appeals of Texas.

April 4, 1923.

Appeal from District Court, Knox County; J. H. Milam, Judge.

Emory Walling was convicted of transporting intoxicating liquor, and he appeals. Reversed and remanded.

J. S. Kendall, of Munday, and D. J. Brookreson, of Benjamin, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Knox county of the unlawful transportation of intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Complaint is made that the testimony is not sufficient to support the verdict. Two witnesses testified for the state; none for appellant. The city marshal of Knox City testified that, following information of the presence of the parties later arrested by him in Knox City, he and some other gentleman drove out upon a certain road and overtook said other parties. At the time they were overtaken said parties had stopped. A Mr. Hensley was out of the car, and appellant had his head out and was vomiting. When witness' car drove up to the other, one of witness' party asked Mr. Hensley if he had broken down, and he answered affirmatively. Hensley was then asked whose car it was, and said that it was his. He was then informed that the officer's party wanted to search the car, and replied, "Help yourself." This witness further testified that Charlie Johnson, who was standing in the front seat of Hensley's car, jerked up the front cushion, dragged out a quart jar, threw it on the ground, and said, "By G____d, you won't get this one." Witness testified that he then looked under the back cushion and found a quart jar of white corn whisky. He further testified that, after they got the whisky, this defendant walked up the road a little way, turned around and came back, and got a car crank and came at witness with said crank drawn back as though to strike him. Witness pulled his gun and appellant said, "If you hadn't pulled that gun, I would have got you." Witness also said that on the way back to town he was riding on the running board of the car, and that appellant made a motion like he wanted to throw around the wind-shield with a pair of pliers as if to break the jar of whisky, which presumably the officer had in his hands.

The state introduced as a witness in its behalf Hensley, the owner of the car in question. This witness testified that on the day in question he and his brother-in-law went from his home to Munday, and at Munday they picked up in their car a man named McEachen and this appellant. He further testified that they had the whisky in the car at the time appellant joined the party, and that they had not...