Wells v. State
| Decision Date | 14 October 1931 |
| Docket Number | No. 14382.,14382. |
| Citation | 42 S.W.2d 607 |
| Parties | WELLS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Horace Wells was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
Reversed and remanded.
Moore & Wilson, of Amarillo, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Conviction is for possessing intoxicating liquor for the purpose of sale; punishment assessed being five years' confinement in the penitentiary.
On the 26th day of June, 1930, officers, acting under a search warrant, searched the house and premises of J. J. Nowell. In all, they discovered one hundred and ninety-five gallons of whisky. Sixty gallons were buried in a maize patch some little distance from the house; the remainder being found in the house. The whisky was in cartons; each carton containing twelve half-gallon jars. Nowell testified that by arrangement with appellant he (Nowell) had agreed to receive and store whisky which appellant might deliver to him, and in turn deliver it to designated parties, presumably agents of appellant; that Nowell was to receive from appellant as compensation for so storing said whisky the sum of $30 per month. He further testified that the one hundred ninety-five gallons of whisky in question were delivered to his house by appellant on the 24th day of June, and all of it placed in the house; that on the night of the 24th and the night of the 25th he had buried sixty gallons of it in the maize patch where it was found by the officers. It sufficiently appeared that Nowell had brought himself within such relation to the whisky as characterized him an accomplice witness as a matter of law. The court recognized this, and so instructed the jury.
It is strenuously insisted that there is not sufficient corroborating evidence to meet the requirement of article 718, C. C. P., which inhibits a conviction upon the testimony of an accomplice, unless corroborated by other evidence tending to connect accused with the offense committed. The state undertook to furnish this corroborating evidence by the wife of J. J. Nowell as to the one hundred ninety-five gallon transaction. Her testimony has been carefully reviewed. It is not thought necessary to set it out in detail. The conclusion is expressed that it sufficiently meets the requirement of the law as tending to connect appellant with that transaction.
After developing its case as to the transaction occurring on June 24th, the state also proved by Nowell that on three other occasions prior to the 24th day of June appellant had brought whisky to his house, the first being about a month before, and the other two between then and the transaction described as having occurred on the 24th of June. Nowell claimed that appellant had brought several gallons on each of these occasions. These transactions seem to have had no connection with one another or with the transaction occurring on the 24th day of June. It appears from bills of exception that appellant objected to evidence of all of the transactions save that of the 24th of June, on the ground that it was proof of extraneous crimes, having no connection whatever with that claimed to have occurred on the 24th of June, and because they did not come within any of the exceptions to the rule inhibiting the proof of extraneous crimes. These objections were overruled. After the state's evidence was developed, appellant demanded an election upon which transaction the state would rely; the state elected the transaction of June 24th; appellant then again renewed his objection to the proof of the three prior transactions, and asked the court to withdraw evidence thereof from the consideration of the jury upon the same ground as theretofore urged, viz. that they did not come within any exception to the rule inhibiting proof of extraneous crimes. The learned trial judge says in his qualification to the bills of exception that the three transactions, proof of which had been complained of, were, "of course, separate and distinct from the transaction elected upon by the State, but were related to that transaction in that each of said transactions was apparently in...
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