Waterhouse v. State

• Decision Date: 25 June 1924
• Docket Number: (No. 8495.)
• Citation: 265 S.W. 558
• Parties: WATERHOUSE v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 558

WATERHOUSE v. STATE.

(No. 8495.)

Court of Criminal Appeals of Texas.

June 25, 1924.

Rehearing Denied November 5, 1924.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Will Waterhouse was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

V. E. Middlebrook, of Nacogdoches, for appellant.

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

LATTIMORE, J.

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

There are five bills of exception in the record. The first complains of the refusal of a peremptory charge in favor of the accused. From our discussion of the sufficiency of the testimony later, it will be gathered that we think the court did not err in refusing to give this charge.

The second bill presents the refusal of a special charge to the effect that intent is an element in every criminal case, and that, unless the jury believed the defendant transported the liquor beyond a reasonable doubt, and that he was transporting it for an illegal purpose, they should acquit. Such charge was not called for by the facts. While in some cases guilty knowledge might become an issue, it would be misleading and confusing to instruct the jury broadly in a case like this that intent was a necessary element. The other phases of said special charge were fully covered by the main charge.

The third bill of exceptions complains of the court's refusal to comply with the jury's request in their retirement that he define "transferring" and "transporting." In view of the fact that the evidence shows beyond question that the acts of appellant amounted to a transporting, and no special charge had been presented, giving any definition of same, we are of opinion that appellant does not show himself entitled to complain, even if the refusal of the court was technically erroneous — a fact of which we are not satisfied.

That Tom Hunt, who had been in a buggy with appellant, and who was arrested at or about the same time, had been indicted for perjury growing out of the trial of a charge against said Hunt for his part in this liquor transaction, or that Hunt had been convicted for his complicity therein, would not seem available to appellant, or to in any way militate against the proposition of his guilt. Two or more men who are united in knowledge and purpose may each be guilty of transporting intoxicating liquor, and the fact that one had been convicted of such offense, or of perjury alleged to have been committed by him upon his trial for such offense, would be no defense to the other.

The fifth bill of exceptions complains of the charge, wherein it stated that, if the jury found that defendant did not transport intoxicating liquor, or had a reasonable doubt as to whether he did or not, they should give him the benefit of the doubt and acquit him. As we understand this record, this was an effort on the part of the learned trial judge to give an affirmative charge on the only defensive theory which appears, viz. that appellant did not in fact transport the liquor, but that, if it was transported, Tom Hunt did so; and we see no valid objection to said charge and fail to comprehend how it placed any burden upon appellant.

On the sufficiency of the testimony, we note that appellant took the stand and swore that on the day in question Tom Hunt proposed to him to come and go with him, and they would get "some." They drove out about 4 miles in the country, to a point where Hunt left appellant and came back with a jar of shinney. After taking a drink they put the jar in the buggy and drove on back, stopping every now and then to take another drink. About the time the car got near the depot in town, the horse, being pretty much left to his own sober devices, ran the buggy into a post and spilled all the contents of said buggy, except the shinney. Appellant said that Hunt was cursing, and that he got shy, but still he did not want Hunt to get away...