Opinion
No. 12012.
Delivered February 6, 1929.
1. — Possessing Intoxicating Liquor — Search Without Warrant — "Probable Cause" Not Unlawful.
Where it was shown that officers observed a bottle of whisky in appellant's car, and had knowledge of other circumstances, the facts constituted "probable cause" that authorized the search of his car without a search warrant. See Chapin v. State, 107 Tex.Crim. Rep., and other cases cited.
2. — Same — Postponed — To Prepare for Trial — Properly Refused.
Where appellant was arrested on the 5th day of October 1927, the indictment returned on the 13th day of March 1928, his application for delay upon the ground that he had not had sufficient time to prepare for trial, which was controverted by the state, was properly denied.
3. — Same — Continued.
The statute Art. 493 C. C. P. 1925, allows two days after indictment to prepare for trial, and in the absence of an abuse of discretion, the action of the trial judge in refusing further time will not be overturned. See Reed v. State, 31 Tex.Crim. App. 35 and other cases cited.
4. — Same — Indictment — Plural Counts — Covering Same Transaction Proper Pleading.
Where an indictment contains two counts, one charging the possession of intoxicating liquor for the purpose of sale, and the other charging transportation of such liquor, and relate to but one transaction, the propriety of such an indictment has been often affirmed. See Branch's Ann. P. C. 233 and Dill v. State, 1 Tex.Crim. App. 285.
5. — Same — Declarations of Accused — When Res Gestae — Properly Admitted.
The declarations of the appellant made at the time of his arrest touching the ownership of the whisky was res gestae of the offense, and properly received. See Copeland v. State, 94 Tex. Crim. 112 and other cases cited.
6. — Same — Condition of Accused — Drunk When Arrested — Properly Admitted in Evidence.
There was no error in receiving the testimony of the witnesses to the effect that the appellant was drunk at the time of his arrest. Such a declaration is not objectionable upon the ground that it was an opinion. The condition of the appellant in this case at the time was a circumstance relevant on the issue of "probable cause" justifying the search.
7. — Same — Evidence — Whisky Seized — Properly Admitted in Evidence.
The whisky taken from the appellant was produced at the trial and identified by the testimony of witnesses who took possession of it, at the time of the arrest, and who testified that it had remained in their possession. The identity of the whisky was thoroughly established, and the testimony properly received, nor was there error in permitting testimony of the sheriff to the effect that he had given part of the whisky to sick people.
8. — Same — Cross-Examination of Appellant — Not Improper.
When appellant had testified that the whisky found in his possession had been bought from one Wood for medicinal purposes, it was not improper to permit the state on his cross-examination to show that Wood was not present at the trial, and no effort had been made to secure his attendance. See Huffman v. State, 23 Tex.Crim. App. 177 and other cases in Branch's P. C. Sec. 147.
9. — Same — Election by State — Not Necessary.
Where an indictment contained two counts based upon the same facts it was not error to refuse to require the state to elect as between the two counts. See Gonzales v. State, 12 Tex.Crim. App. 663.
10. — Same — Argument of Counsel — Not Improper.
Where appellant had testified that one Wood was an important witness in his behalf, and having been cross-examined with reference to his failure to name Wood in his application for a continuance, it was not improper for counsel for the state to comment upon this fact in his argument.
Appeal from the District Court of Mason County. Tried below before the Hon. J. H. McLean, Judge.
Appeal from a conviction for the possession of intoxicating liquor for the purpose of sale, penalty one year in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Possessing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.
Observing a bottle of whisky in the appellant's car and having knowledge of other circumstances quite adequate to constitute "probable cause" as that term is defined in the decision of this court in Chapin v. State, 107 Tex. Crim. 447, and other cases, a search of the appellant's car revealed the presence of something over 100 bottles of whisky. The appellant claimed that it was possessed for medicinal purposes.
The arrest was made on the 5th day of October, 1927. The indictment was returned on the 13th day of March, 1928, and the trial began on the 16th day of that month. The appellant sought a delay upon the ground that he had not had sufficient time to prepare for trial and that certain witnesses whom he named were not available. No process was issued or applied for either before or during the trial. The facts set up in the motion were controverted and the bills of exceptions were qualified. The motion contained an averment that the appellant had had some negotiations with an attorney who resided in Coleman and that he expected to make arrangements with him to try the case. He claimed that while in jail he had been unable to communicate with his attorney. The controverting affidavit traversed these allegations. The appellant was represented by an attorney upon the trial. The statute (Art. 493, C. C. P., 1925) allows two days after indictment to prepare for trial, and in the absence of an abuse of discretion the action of the trial judge in refusing further time will not be overturned. Reed v. State, 31 Tex. Crim. 35; Jones v. State, 83 Tex.Crim. Rep.; McKenzie v. State, 11 S.W. R. 2d 182. Especially is this true when the evidence of guilt is conclusive and the averments of the motion to delay are not supported upon the hearing of the motion for new trial.
The contention that the indictment violated the principle which inhibits a trial for two distinct offenses in the same indictment is not tenable. The indictment was properly drawn in two counts: one charging the possession of intoxicating liquor for the purpose of sale; the other charging the transportation of such liquor. They related to but one transaction. The propriety of such an indictment has been often affirmed. See Branch's Ann. Tex. P. C., p. 233, and many cases cited, including Dill v. State, 1 Tex.Crim. App. 285.
The declarations of the appellant made at the time of his arrest touching the ownership of the whisky was res gestae of the offense and properly received. Copeland v. State, 94 Tex. Crim. 112; Boortz v. State, 95 Tex.Crim. Rep.; Rees v. State, 278 S.W. Rep. 451.
There was no error in receiving the testimony of the witnesses to the effect that the appellant was drunk. Such a declaration is not objectionable upon the ground that it was an opinion. Riddle v. State, 298 S.W. Rep. 580; Underhill's Crim. Ev., 3rd Ed., Sec. 278. The condition of the appellant at the time was a circumstance relevant on the issue of "probable cause" justifying the search.
The whisky taken from the appellant, with the exception of several bottles, was produced at the trial and identified by the testimony of witnesses who took possession of it at the time of the arrest and who testified that it had remained in their possession. The identity of the whisky was thoroughly established and the testimony properly received. Nor was there error in receiving the testimony of the sheriff to the effect that a part of the whisky had been given to sick people.
In his testimony the appellant claimed that one Wood was an important witness in his behalf; that he had bought the whisky from Wood for medicinal purposes. In his cross-examination there was no error in calling the appellant's attention to the fact that Wood was not one of the witnesses upon whose absence the application for a continuance was based. The testimony tended to discredit that given by the appellant in his own behalf and was not improper cross-examination. Huffman v. State, 28 Tex.Crim. Rep., and other cases collated in Branch's Ann. Tex. P. C., Sec. 147.
The refusal of the court to require the State to elect as between the two counts in the indictment was not error. Gonzales v. State, 12 Tex.Crim. App. 663, and cases in Branch's Ann. Tex. P. C., p. 233, Sec. 444.
There was no error in refusing to instruct a verdict for the defendant.
The appellant having testified on the trial that Wood was an important witness in his behalf and having been cross-examined with reference to his failure to name Wood in his application for a continuance, there was no impropriety in counsel for the State, in his argument, to comment upon the facts to which reference has been made.
The judgment is affirmed.
Affirmed.