Risby v. State

WOODLEY, Judge. The offense is transporting whisky, beer, wine and vodka in a dry area; the punishment, 3 months in jail and a fine of $500. The evidence from the state’s standpoint shows that on the night of November 8, 1959, Deputy Sheriff HcLaury and Sudan Chief of Police Hears observed an automobile approaching highway from the west on a dirt road in Lamb County, a dry area. As the automobile stopped at the intersection, appellant got out and Chief Hears asked to see her driver’s license. There were three other occupants of the automobile, Juanita Ashley, Betty Collins and George Shorter, alias Barnyard Jones. Deputy HcLaury, who had known appellant for several years and who had received information that the automobile she was driving was being used to haul illicit beverages from the State of New Hexico into Littlefield, Texas, looked into the automobile and saw some beer cases between the front and back seat. He asked appellant if he could look in the trunk, and she said “The keys are in the switch.” Officer HcLaury got the keys and went to the back of the automobile. He asked appellant “What have you got in there?” and she said “I have too much.” She then took the keys and opened the trunk. In the trunk the officer found ducking sacks in which there were paper bags containing whisky and wine, and between the seats he found, in addition to beer, some whisky and vodka, all of which was introduced in evidence at the trial and totaled some 75 or 80 pints of wine, 21 pints of Old Quaker Whisky, 16 half pints of “Bourbon de Luxe,” 14 half pints of “Barclays,” 8 half [419] pints of vodka, two cases of beer containing 24 twelve ounce cans of beer, a six pack of 12 ounce cans and 5 other cans of beer. The automobile, according to the state’s evidence, was owned by Oscar Adams who testified that he had loaned it to appellant. Appellant testified. Her version of the facts was that she did not borrow the automobile, but drove it at the request of Juanita Ashley, who had borrowed it but did not have a driver’s license; that she drove to Clovis (New Mexico) and then to a place near Melrose; that she became ill from having eaten barbecue and went to an outside restroom; that her companions were drinking beer; that when they stopped she was the only one in the automobile that was sober; that she did not put liquor in the automobile; had no knowledge of any beer, wine, whisky or vodka being in the car; did not open the trunk; that she was not asked by the officer if he could look in the trunk; did not say that the keys were in the switch and that the officer did not ask her what she had in the trunk and she did not say “I have too much.” The disputed issue of facts were for the jury. They were resolved against the appellant, and the evidence sustains the jury’s verdict. We overrule the contention that under the facts stated the beer, wine, whisky and vodka, and the evidence relating thereto, was obtained as the result of an illegal search. Appellant claims error in the charge submitting appellant’s contention that she had no knowledge of the alcoholic beverages or liquor being in the automobile she was driving because, instead of the customary instruction that the defendant should be given the benfit of a reasonable doubt, the instruction concluded “then you will give the defendant the benefit of your said belief or doubt and acquit her and say by your verdict ‘not guilty.’ ” If this be error, it was harmless. Other claims of error have been considered and are overruled. The judgment is affirmed.