Williams v. State (1 S.W.2d 627, 1927)

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 Stephen-ville, 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 ear 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 he affirmed.

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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 hy 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 hy 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 could be considered, since we uniformly hold that an exception must be specific and pointed, in order to call the attention of the court below and of this court to the very point had in mind by the objector. We cite Russel v. State, 96 Tex. Cr. R. 105, 256 S. W. 283; Wright v. State, 98 Tex. Cr. R. 513, 266 S. W. 783; Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949; Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. w. 1054; Greenwood v. State, 99 Tex. Cr. R. 160,. 268 S. W. 469. We further 'observe that no special charge was presented, asking that the jury be told not to consider the remarks of the district attorney. Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147; Wren v. State, 68 Tex. Cr. R. 75, 150 S. W. 440. In the absence of a showing that such charge was asked and refused, this court must be satisfied that the remarks were obviously hurtful. Kennedy v. State, 19 Tex. App. 634; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055.

We have no hesitation in saying that we cannot bring ourselves to believe that this record makes obvious the fact of any injury to appellant. On the facts the record shows that the officers had located a jar of whisky hidden at a certain point. Secreting themselves, they watched. About sundown a car came up and stopped near the hidden whisky, but the motor was not cut off. Appellant got out of the car, went directly to where the whisky -rtas hidden, uncovered it, picked it up, and started back to the car. He had gone about 15 feet when the officers discovered themselves and told him to stop. The man in the car ran away. These facts were undisputed, and made a plain case of transportation of intoxicating liquor. Mendosa v. State, 106 Tex. Cr. R. 127, 290 S. W. 1100; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097; Winters v. State, 101 Tex. Cr. 276, 275 S. W. 1015; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613. The jury gave appellant the lowest penalty. The facts being plain and undisputed, and the jury having given the accused the lowest penalty, there seems no room for dispute. No injury could have been inflicted by the argument.

The motion for rehearing will be overruled.