Davis v. State

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The state's testimony showed that an officer went to appellant's place and bought from him two bottles of beer. This transaction was made the basis for the issuance of a search warrant, armed with which the officer presently returned. He found appellant at a filling station not far from his house. When he presented the search warrant, appellant gave three shrill whistles. According to the state's testimony, appellant's wife and children, who were at his house, immediately disappeared in the house. The officer went at once to appellant's house, and testified that he found therein some empty pint bottles showing that whisky had been just poured from them, also thirty-eight bottles of beer in an ice chest. He said this beer was intoxicating. This is the substance of the state's case.

Appellant presents a number of bills of exception, each of which has been examined but none are believed to present error for which the case should be reversed. The court submitted the case to the jury upon the theory and law of circumstantial evidence. *Page 166

The attorney for the state who drew this indictment is to be congratulated upon the fact that in same he described the liquor possessed as "liquor capable of producing intoxication." If this description had been followed by attorneys for the state generally in indictments presenting the various phases of violation of what are commonly called the "liquor laws," this court would have been saved the necessity of many reversals. Appellant's objection to the charge of the court is without merit. Whenever the court used the word liquor in the charge, he coupled it with the words "capable of producing intoxication."

The first bill of exception complains of the reception in evidence of the officer's statement that whisky had just been poured out of the pint bottles found in appellant's house. We are not prepared to agree with appellant that this is necessarily a mere opinion. It might be a shorthand rendering of facts visible to the eye of the officer who went at once into appellant's house and made the search after appellant had, by whistling, notified his family that the officer was coming. Various indications conceivable, might amply justify the officer in stating the above as a fact. This record shows a vigorous effort on the part of appellant's attorney to induce the state witness, who said that he bought beer from appellant, and found beer in appellant's house, — to draw a distinction between the beer bought and found and other different kinds of beer. The witness declined to do so, but insisted repeatedly that it was beer. Two bills of exception complain of rulings of the court upon objections made to numberous questions apparently asked in repetition of this witness. We see no error in either of the bills.

Complaint is made of the fact that the state's objection to a question asked of the deputy sheriff who searched the house, if he was not a stool pigeon, which appears to be without merit in view of the fact that the officer testified fully that he was hired, and was paid money after the search was over for hiss ervices. The only possible merit in appellant's contention would be that the officer was not permissible to describe himself eo nomine as a stool pigeon.

Bills of exception 5 and 6 set out in question and answer form a number of objections made during the examination of the officer, a statement of which would consume time and space and be of no value. We have been unable to see any error in the matters complained of in either bill. Some questions were asked the doctor who testified for the defense that he had prescribed home brew for appellant's wife, but we see no serious objection to them. We gather from the record that said doctor had given evidence in one or more other cases similar to this on behalf of persons accused, and he was asked if his services as an expert witness interfered with his practice any. The matter seems of no importance.

Appellant's attorney complains that one of his witnesses to appellant's good reputation was asked by the state if he was not testifying *Page 167 as he did because of his love and affection for appellant's father. If the witness was so testifying for such reason it would be provable. Bill No. 9 relates to further cross-examination of this witness as to what he had heard concerning appellant, and seems to present no error. Another bill of exception complains that testimony was admitted to the effect that at a time something like two weeks from the date laid in the indictment witnesses were at appellant's house and saw some parties there, and found an empty flask and a number of fruit jars, and in an ice box several bottles of beer that was intoxicating. This was a case of circumstantial evidence, and the question was appellant's possession of intoxicating liquor, and this testimony was near enough to the time in question to make it provable as a circumstance.

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

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.