
    AMAYA v. STATE.
    (No. 5726.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Intoxicating liquors <3=17 — Prohibition of transportation not violative of local option.
    Acts 35th Leg. 4th Called Sess. (1918), c. 24, § 3, prohibiting transportation in or importation into state of any spirituous liquors, held not inoperative as indirect violation of Const, art. 16, § 20, providing Legislature shall enact law whereby voters of any county, precinct, town, city, etc., may determine whether sale of intoxicants shall be prohibited.
    2. Intoxicating liquors <3=238(2) — Defendant’s connection with liquor he was transporting held jury question.
    In prosecution for transporting liquor into state on defendant’s person, nature of defendant’s relation to liquor found in his possession, bearing evidence of having been brought from Mexico, held issue of fact for jury; defendant’s explanation that he had found liquor and was taking it to police station not being conclusive.
    3. Criminal law <3=824(4) — Intoxicating liquors <3=239(1) — Instruction on defense as to finding liquor transported held proper; refusal of instruction already given is proper.
    In a prosecution for transporting liquor into state on defendant’s person, instruction presenting defendant’s theory he had found liquor and was taking it to police station, that if his explanation was reasonable and true or a reasonable doubt existed on the issue to acquit him, held proper and to obviate need of special charges requested.
    4. Jury <3=45, 56 — “Conviction” of felony in United States court disqualified juror and vitiated verdict.
    Under Code Or. Proe. arts. 692, 695, verdict of conviction, returned by jury whose foreman had been convicted in court of United States of a felony and remained unpardoned, must be set aside; “conviction” -as used in statute including conviction in another jurisdiction.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Conviction.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Juan Amaya was convicted of transporting intoxicating liquors on bis person, and be appeals.
    Reversed and cause remanded.
    John A. Pope & Son, of Laredo, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for tbe State.
   MORROW, J.

Tbe indictment charged that the appellant did “transport within, and import into, tbe county of Webb, in tbe state of Texas, by carrying same in bis hands and upon bis person” intoxicating liquor. Tbe foundation of tbe prosecution is attacked upon tbe ground that section 3 of chapter 24, Laws 35th Legislature 4th Called Session (1918) page 37, were inoperative at tbe date of tbe offense, June 9, 1919. Ex parte Myer, 207 S. W. 100, is not authority supporting the appellant’s proposition. Tbe same attack was made on section 1 of tbe act in question, which section prohibited tbe manufacture of intoxicating liquors. Tbe subject was reviewed in Ex parte Davis, 215 S. W. 341, and the conclusion there reached and tbe reasoning inspiring it are applicable to tbe present contention. From tbe Davis Case we quote:

“The contention that the practical effect of the prohibition of the manufacture in the state would retard or render inconvenient the conduct of the business of selling such liquors, and that for that reason would be an indirect violation of section 20, art. 16, of the Constitution, we think is not sound. That subdivision of the Constitution does not confer upon the individual citizen any vested right in the sale' of intoxicating hquors. It, as above stated, only confers a political right and legislative power, upon the citizens of the districts named, to decide at an election whether a law prohibiting the sales of such liquors shall be effective within the prescribed limits, and from time to time whether it shall remain so.' There is no inherent right in a citizen to sell intoxicating liquors. It is not a guaranteed privilege of a citizen of the state or of the Union. Joyce on Intox. Liquors, §§ 77, 87; Ruling Case Law, yol. 15, p. 259; 23 Cyc. 75. In prohibiting the manufacture of such liquors the Legislature, in our opinion, exercises a part of the police power embraced within the general power conferred upon the Legislature by the Constitution, and the fact that there is imposed a limitation upon the power of the Legislature to> enforce another phase of the police power — that of prohibiting sales — does not imply a denial of its power to prohibit the manufacture of such liquors.”

Appellant in the night was found in possession of some 20 bottles of intoxicants, weighing over 50 pounds, having them in a sack, which at the time was wet, as was also the wrapping around the bottles and the appellant’s coat, against which he was carrying the sack. He was found near the Rio Grande river, or a bayou that runs into the river, at or near the city of Laredo, and the liquor bore evidence of having been manufactured in and having come from a city in the republic of Mexico, near Laredo. When taken in custody, and in his testimony on the trial, the appellant claimed to have found near the river the sack with the bottles of liquor in it, and to have taken possession of it for the purpose of taking it to the police station. The nature of appellant’s relation to the sack of liquor was rendered by the circumstances an issue of fact for the jury to solve. Under the facts, his explanation of his possession at the time of arrest was not conclusive against the state. His theory was presented to the jury in a charge, in substance, that if his explanation was reasonable and true, or a reasonable doubt existed on that issue, to acquit him. The charge, we think, is not subject to the criticisms addressed to it, nor in need of aid from special charges requested.

In the motion for a new trial it was shown without question that the foreman of the jury had been convicted in the United States court of a felony, and was unpardoned. Under our statutes, one convicted of a felony or of theft cannot be impaneled as a juror, even with the consent of the parties. C. O. P., arts. 692, 695. On behalf of the state the suggestion is made that the term “conviction of a felony” used in the statute does not include a conviction in another jurisdiction. The cases to which we have been referred in support of this view are cases which were determined on the issue of waiver. Queenan v. Territory of Oklahoma, 11 Okl. 261, 71 Pac. 218, 61 L. R. A. 324; State v. Williams, 38 La. Ann. 361; State v. Bird, 38 La. Ann. 497; Busey v. State, 85 Md. 115, 36 Atl. 257; State v. Wilson, 230 Mo. 647, 132 S. W. 238; State v. Powers, 10 Or. 145, 45 Am. Rep. 138; Goad v. State, 106 Tenn. 175, 61 S. W. 79. The statutes in the states in which these decisions were made declare that the conviction of a felony disqualifies a juror, and the courts held that this disqualification is available as a challenge at the time the selection of the jury is made, but not good after verdict. Our statute on the subject is peculiar. Article 692 names as a cause for disqualification that he has been convicted of theft or any felony, and article 695, referring to this disqualificatiop, declares that such a juror shall not be impaneled, although both parties may consent.

There are decisions touching the disqualification of witnesses in which the holding is that the conviction in one jurisdiction will not disqualify in another. Brown v. U. S., 233 Fed. 353, 147 C. C. A. 289, L. R. A. 1917A, 1133 ; Commonwealth v. Green, 17 Mass. 515. The opposite rule obtains in some states. Chase v. Blodgett, 10 N. H. 22. In our state the New Hampshire rule is adhered to by statute. C. C. P. art. 788; Pitner v. State, 23 Tex. App. 366, 5 S. W. 210.

The reasoning which underlies some of these cases is that the judgment in a criminal case cannot be enforced in another jurisdiction. This principle seems not controlling in this state, in that the object of the Legislature appears to be not the punishment of the convicted juror, but the protection of society against the pollution of the jury system by committing its execution to persons whose moral status has been judicially established as criminal. If the Legislature had in mind only the prevention of one convicted in our own state from serving as a juror, it might have rested upon section 1 of article 692, because in that article one not a qualified voter is discarded for jury service, and under article 6, § 1, of the Constitution, persons convicted of a felony cannot vote. The scope of the legislative interdiction is further illustrated by the fact that it includes persons convicted of theft, whether a felony or not. The object sought by the Legislature, it is conceived, would not be attained by the rejection of one who had been convicted of theft in Texas, and accepting one who had been convicted of the same offense in an adjoining state. One who commits arson is no less infamous because the act was done in another state rather than this one, and the judicial determination in either state of his guilt would be conclusive of the facts.

The construction given our statute has been uniform to the effect that it is the imperative duty of the trial court or the reviewing court to set aside a verdict which was rendered by the jury, a member of which was an unpardoned convict. Wright V. State, 52 Tex. Cr. R. 542, 107 S. W. 822; Bundick v. State, 59 Tex. Cr. R. 10, 127 S. W. 543; Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294; Greer v. State, 14 Tex. App. 179. We regard this rule as operative in the instant case, although the conviction was in another jurisdiction.

The judgment is reversed, and the cause remanded. 
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