Marinkovich v. State

HAWKINS, Judge. — Conviction Conviction is for the transportation of intoxicating liquor with punishment assessed at one year in the penitentiary. Motion was presented to quash the indictment alleging that it charged no offense against the law. The motion does not set out in what particular the indictment is thought to be imperfect and an *61 inspection of it reveals no defect. See Crowley v. State, 92 Texas Crim. Rep., 103, 242 S. W. Rep., 472; Johnson v. State, 93 Texas Crim. Rep., 150, 245 S. W. Rep., 710. Officer Rhodes testified that about seven-thirty o’clock at night he saw the lights of an automobile some distance away approaching him; that as the car neared witness he stepped out of his own car and ordered the driver of the approaching car to stop; that instead of heeding the command the car was speeded up; that he fired one shot as it passed and the driver brought the car to a standstill about one hundred yards further down the road; that he ran after the car and when within about twenty steps of it he saw appellant throw two sacks out which upon" examination were found to contain five half-gallon jars filled with whisky and the remanents of ten more" jars which had been broken. Ten tops were found in the sacks corresponding to the broken jars. The sacks were wet and bore the odor of whisky. J. N. Dyer, who was with officer Rhodes at the time the car driven by appellant was stopped, testified substantially as did Rhodes, with the exception that Dyer was further behind in approaching appellant’s car and did not see the whisky thrown out. When he reached the ear one sack was lying partly upon the running board and the other one lying near it. He supports Rhodes relative to the contents of the two sacks. Appellant contends he was entitled to a charge upon circumstantial evidence. Appellant introduced no evidence whatever. There is no merit in the contention that the case is one depending on circumstantial evidence- alone. The cases cited by appellant in support of his proposition are Dean v. State, 93 Texas Crim. Rep., 132, 245 S. W. Rep., 921; Ellsworth v. State, 92 Texas Crim. Rep., 334; 244 S. W. Rep., 147; Wales v. State, 86 Texas Crim. Rep., 183; 217 S. W. Rep., 384; Joyce v. State, 90 Texas Crim. Rep., 265, 234 S. W. Rep., 895. They sustain the rule that where there is no direct evidence a charge on circumstantial evidence must be given, but each of them presents a vastly different state of facts than are found in the present case. Here appellant was seen driving the car from which he was seen to throw the whisky. This takes the case out of the domain of circumstantial evidence. Appellant complains that while the assistant district attorney was making the closing argument he made the statement, “The defendant is guilty of transporting intoxicating liquor.” The remark was objected to at the time and a special charge prepared instructing the jury not to regard it, but a controversy arose between the district attorney and counsel for appellant as to whether the assistant district attorney in his statement had not added the words “under the law,” and because of the controversy the requested charge was not given. Under the facts in the present case *62 we regard the controversy as to whether the additional words were added as being immaterial. We have been cited to no case decided by this court in which language similar to that complained of has been held reversible even where the court declined to give a special charge withdrawing the same. The language complained of may very reasonably bear the construction that the assistant district attorney was not stating to the jury his personal belief as to the guilt of appellant but was stating his conclusion from the facts in evidence. As was said in Young v. State, 19 Texas Crim. App., 536: “While it is true that authors in treating upon this subject say that counsel either- for or against the prisoner should never express their opinion as to the guilt or innocence of the accused,-yet we would hesitate at this day to reverse a judgment because of a violation of this rule.” To the same effect is Kennedy v. State, 19 Texas Crim. App., 618; See also, Spangler v. State, 42 Texas Crim. Rep., 233; Hawkins v. State, 71 S. W. Rep., 756; Hinton v. State, 65 Texas Crim. Rep., 408, 144 S. W. Rep., 617. The complaint of argument must be always considered in the light of the facts under discussion and we do not regard the matter here presented as of serious import. In no possible way could it have injured appellant. The facts were conclusive as to his guilt, and the lowest punishment was assessed. Finding no error which would call for a reversal, the judgment is affirmed. Affirmed.