Williams v. State

• Decision Date: 14 December 1927
• Docket Number: (No. 11200.)
• Citation: 1 S.W.2d 627
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

1 S.W.2d 627

WILLIAMS v. STATE.

(No. 11200.)

Court of Criminal Appeals of Texas.

December 14, 1927.

Rehearing Denied January 18, 1928.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Tom Williams was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

Chandler & Chandler, of Stephenville, for appellant.

Sam M. Russell, Dist. Atty., of Stephenville, and A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The statement of facts consists of the testimony of only one witness. He testified that, in company with another officer, he discovered a jar of whisky covered up on the Hico road, about two miles south of Stephenville, in Erath county. Witness secreted himself and watched. Appellant and another man in a car appeared. They stopped the car not far from the whisky. They did not cut off the motor. Appellant got out of the car, climbed over the fence, walked to the point where the whisky was secreted, raked the leaves off, picked up the whisky, turned around, and started back to the car, and had gone about 15 feet with the whisky in his hand, when witness told appellant to put the whisky down and stick up his hands. The party in the car drove rapidly away. We deem these facts amply sufficient to support the conclusion reached by the jury. Mendosa v. State, 106 Tex. Cr. R. 127, 290 S. W. 1100; Franco v. State, 105 Tex. Cr. R. 191, 287 S. W. 272; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097; Lambert v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613.

Four bills of exception appear in the record. Each has been carefully examined. We deem it perfectly proper for the state witness to testify that he and the other officer went to the pasture where the whisky in question was found; also to state that the car in which appellant came to the place where he got the whisky was driven rapidly away; that witness called to the driver, who did not stop, but came away in the direction of town.

There is complaint of the fact that the district attorney said to the jury in argument, "Why didn't the defendant call out to him, `Come back here; we are not violating any law'?" The bill is qualified by the trial court, who states that appellant's counsel had argued to the jury that appellant did not try to get away, was not violating any law, and was not responsible for the party running off in the car, etc., and the state's attorney was only replying to this argument. We perceive no error in this argument.

Appellant has a bill of exceptions complaining of the fact that the state's attorney said to the jury: "It is uncontradicted in this record that this was corn whisky and intoxicating" — it being contended that this was a reference to the failure of the appellant to testify. We are unable to agree with the contention. There is nothing in the record contradicting the testimony of the state witness to the fact that the liquor which was taken from the possession of appellant was whisky.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

In a forcible motion for rehearing, appellant insists that we were wrong in regard to our holding that the argument of the district attorney complained of showed no error. The argument is quoted in said opinion.

The objection to said argument, as revealed by the bill of exceptions, was that it was a comment on the failure of the accused to testify, and was improper and prejudicial. The argument was so plainly not a reference to any failure of appellant to testify that we did not deem it necessary to make any extended analysis thereof to demonstrate this fact. None of the authorities cited by appellant in his motion for rehearing bear upon the question of error in commenting upon the failure of the accused to testify. The argument and all the authorities in said motion are entirely in support of the proposition that the silence of the accused when under arrest shall not be taken as a circumstance against him — a proposition uniformly upheld by this court and all other authorities known to us. This proposition, however, is based on a principle of law entirely different from the one advanced in the objection made.

However, appellant insists that we give effect to the general grounds of exception shown in said bill, to wit, that the argument was improper and prejudicial. In view of the authorities in this state, it may be doubted whether such an exception...