Kennington v. State

LATTIMORE, Judge. — Conviction for possessing intoxicating liquor for- purposes of sale; punishment, two years in the penitentiary. The facts are amply sufficient to support the conviction. The record contains one bill of exception, and it complains of argument of the district attorney. In his closing argument said attorney stated: “Of course, you cannot criticise Mrs. Batson’s testimony, neither Mr. Batson’s testimony, because there is not a line of testimony to contradict it.” This was objected to as an allusion to the failure of appellant to testify. This bill is qualified, the qualification containing the following statement: “The court certifies to the facts stated in this bill only wherein they are consistent with the following:” and the court then proceeds to say that: “Attorney for the defendant had argued to the jury that the facts and circumstances in evidence were not sufficient to justify them in finding beyond a reasonable doubt if defendant possessed the whisky on the occasion in question, that he possessed it for the purpose of sale; that he (attorney for defendant) had no criticism to make of Mrs. and Mr. Bat-son’s testimony that they saw defendant with the whisky on the occasion in question, but that their testimony that they saw him with the whisky and saw him deposit it in the weeds near their garage did not prove that he had it for the purpose of sale, but that such testimony was just as consistent with the theory that defendant put the whisky there on the occasion in question for the purpose of coming back and drinking it later, as it was that he had it for the purpose of sale.” The court further certifies that the district attorney in discussing this issue in his closing argument stated to the jury, — after summing up the other facts and circumstances in evidence on this issue, and calling the jury’s attention to the testimony of the Batsons that on other occasions when they had seen defendant deposit whisky at or near the place in question, they would later see persons or some person visit the place and act as if they were picking up something, — “Of course, you cannot criticise Mrs. Batson’s testimony, neither Mr. Batson’s testimony, because there is not a line of testimony to contradict it,” and in this connection the court further states that after appellant’s attorney had arisen and made his objection to the argument as calling attention to the failure of defendant to testify, the district attorney then proceeded to finish the statement he was making, saying, in substance, that not only was such testimony of said witnesses consistent with, but that all the other facts and circumstances were consistent with and establish the claim of the *194 state that appellant had the whisky on the occasion in question for the purpose of sale, and deposited it there in the weeds for his customers to later come and get it. There are no such facts certified to by the court in this bill of exception as that there were no other persons who could testify to facts given in evidence by the Batsons save and except appellant. In fact the contrary is true. The Batsons testified to seeing appellant put whisky in weeds and grass near their garage on many occasions, and that they had seen persons come later to such points and get the whisky. Officer Rochelle testified to seeing appellant take something out of his pocket and hide it down in the grass near the Batsons’ garage, and that he then mashed down the grass and the weeds around it with his feet. Mrs. Batson testified that she saw appellant go to- a place near their garage and stoop down and hide some whisky; that she had been seeing him do this kind of thing for two months, and that usually in a short time after he had done this some other person or persons would come and stop there and she could tell they were getting something; that she had seen this occur many times. On cross-examination she said she had seen Cotton Burkland come there and hunt for whisky, and that she had seen both negroes and white folks do this. She said she and her husband found several bottles of whisky at the place where appellant had hidden whisky on the particular night in question, and that she had given this whisky to officer Rochelle. Appellant was charged with and convicted for possessing intoxicating liquor for purposes of sale. All of this testimony above referred to would be material, as well as further testimony of other persons to the finding of large quantities of whisky near appellant’s residence about the time of this transaction. We fail to find anything in the record indicating that there were not other persons shown to have knowledge of the facts testified to by Mr. and Mrs. Batson, and must conclude that the argument of the district attorney was in no sense a necessary reference to the failure of appellant to testify. The bill of exception prepared by appellant seeks to have the court certify that there were no other persons present who could give such testimony, but the court declined to certify to such fact. Finding no error in the record, the judgment will be affirmed. Affirmed.