Johnson and Edwards v. State

HAWKINS, Judge. Conviction is for possession of intoxicating liquor for the purpose of sale, punishment being assessed at one year in the penitentiary against each appellant. The indictment contained two counts. The first charged transportation and the second possession for the purpose of sale, of intoxicating liquor. Many of the exceptions to the court’s charge are directed at the instructions regarding transportation. As the charge appears in the transcript only the second count of the indictment was submitted to the jury. The court evidently responded to the exceptions in so far as submitting the second count was concerned, and omitted altogether any instructions regarding it. Officers watched Johnson and Edwards leave the town of Brownfield in a car belonging to Johnson. They lost sight of the car for probably twenty minutes. When the;r came up with it it was some two and a half miles out of town, was standing still, and Johnson and Edwards were both out of it. According to the officers’ testimony, just as they came up Edwards reached in the car and drew from under a coat two full quart bottles of whisky which he slapped together, breaking one completely and cracking the other so the whisky was leaking from it. Some of the whisky from the cracked bottle was recovered by the officers. The defensive issue arose from the testimony given by one Gaston and the two appellants. Gaston claimed that earlier in the day he had bought a quart of liquor from one “Mick” who had taken Gaston to the point where the appellants were later apprehended; that Mick took from under some weeds a quart bottle which contained only a small quantity of whisky which Gaston drank; that Mick then produced from the same bunch of weeds a full quart which Gaston purchased; both it and the empty bottle were left there. Gaston further testified that after returning to town he met Edwards and went with him to a cafe operated by Johnson; that Edwards and Johnson wanted a drink of whisky and that he (Gaston) told them where the quart was he had purchased and gave them permission' to get a drink from it. Both appellants gave testimony as to Gas-ton’s permission for them to get a drink of the whisky and as to directions from him as to where it could be found. Both claimed that when they reached the place the empty bottle was first discovered and then the full quart; that they had just taken a drink and had not had time to again hide the whisky in the weeds before the officers drove up. Both appellants claimed that the bottles were not in the car but on the running board of it. They further claimed their only connection with or possession of the whisky was for the purpose of getting a drink. *288 The objections to the court’s charge as found in the transcript are very confusing. After the court had amended his charge by omitting any instruction on transportation of the liquor if appellants had any objections to the revised charge they should have filed written objections thereto. Having failed to do so we are not called upon to consider the objections directed at the charge as originally prepared. Article 660, C. C. P. (1925); Kincaid v. State, 111 Texas Crim. Rep., 1, 10 S. W. (2d) 725; Hall v. State, 97 Texas Crim. Rep., 158, 260 S. W., 878; Jackson v. State, 103 Texas Crim. Rep., 252, 280 S. W., 808; Butler v. State, 105 Texas Crim. Rep., 228, 288 S. W., 218; Martin v. State, 107 Texas Crim. Rep., 46, 294 S. W., 595. In connection with the subject last discussed we observe that we discover no vice in the charge in its definition of "prima facie” evidence. 'In that respect the charge seems to follow approved precedents. The same is true as to the definition of “possession”. No charge on circumstantial evidence was called for under the facts. The defense was that appellant’s only connection with the whisky was to get a drink of it. The court pertinently told the jury if they believed or entertained a reasonable doubt that appellants or either of them had the whisky only for the purpose of taking a drink they would be guilty of no offense. The issue of fact thus sharply raised was decided by the jury against appellants and this court would not be justified in disturbing the verdict of the jury under the circumstances. The judgment is affirmed. \dffirmed.