
    DENNIS v. STATE.
    (No. 11118.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    Rehearing Denied Jan. 18, 1928. Application for Deave to File Second Motion for Rehearing Feb. 15, 1928.
    1. Criminal law &wkey;>394 — Defendant cannot com- ■. plain of use of evidence obtained by search of house, which did not belong to him.
    Defendant, convicted of transporting intoxicating liquor, cannot complain because house which did not belong to Mm was searched with consent of occupant, and evidence so obtained was used against, him.
    2. Intoxicating liquors <&wkey;-l67 — Person to whom accused made delivery of liquor is not his accomplice (Pen. Code 1925, art. 670).
    Defendant, convicted of unlawfully transporting intoxicating liquor, cannot complain of testimony given by occupant of house to whom delivery of liquor had been made, by reason of Pen. Code 1925, art. 670, providing purchaser, transporter, or possessor of liquors prohibited shall not be held an accomplice, when witness in trial.
    3. Criminal law <®=o394 — Failure to comply with statute relating to property seized without search warrant was not ground for excluding testimony of officer making seizure (Pen. Code 1925, art. 692).
    Failure to comply with Pen. Code 1925, art. 692, requiring officers searching property without warrant to make written report, and requiring it to be delivered to sheriff, does not preclude officer, after seizure of intoxicating liquors, from giving testimony as to facts within his knowledge relating to seizure.
    •4. Criminal law &wkey;>368(l) — Conversation between officer and occupant of house searched for liquor held admissible as part of res gestae.
    In prosecution for unlawful possession of intoxicating liquor, where officers entered and searched dwelling with consent of occupant, and where occupant, at time of search, said that, if whisky was found, she guessed it was hers, and officer replied that it belonged to accused, held that officer to whom statement vkas made could testify to conversation as being part of res gestee.
    
      On Motion for Rehearing.
    5. Criminal law <&wkey;857(l)— Juror’s discussion of liquor transaction, mentioned on cross-examination, did not justify reversal, in absence of objection or request for instruction to dis-. regard.
    Discussion of jurors in jury room, arising from question asked accused in liquor case as to another liquor transaction, and to which question no objection was interposed, nor instruction for jury to disregard it requested, was not such conduct as would justify reversal.
    6. Criminal law <&wkey;925(l), 1156(5) — Denying new trial for misconduct of jury is discre-
    ' tionary, and will not be disturbed, unless clearly wrong.
    .It is within court’s discretion to overrule motion for new trial, based on claim of misconduct of jury, and action of the trial court in so overruling motion will not be disturbed on appeal, unless clearly wrong.
    On Application for Leave to Pile Second Motion for Rehearing.
    7. Criminal law &wkey;>857(2)— Jury has right to discuss testimony, and each juror is entitled to express his opinion or conclusion.
    Jury has right to discuss testimony, which must include what witnesses affirm, and also what they deny, or about which they are doubtful, and each man of jury may express his opinions and conclusions.
    8. Criminal law <§=>553 — Juror’s right to doubt truth of an express denial of fact may be founded on manner and appearance of witness and surrounding facts.
    Juror’s right to doubt truth of an express denial of fact may be perfectly well founded, as based on manner and appearance and conduct of witness and surrqunding facts.
    9. Criminal law <&wkey;l 159(4) — Appellate court will not so far invade province of jury as to say it was improper for jurors to state that they did not believe testimony.
    Appellate court will not, under any circumstances, so far invade province of jury as to say that it was improper for jurors to state that they did not believe testimony of witness who answered particular question in negative.
    <0. Criminal law <§=>! 174(1) — Action of reviewing court in undertaking say what juror’s right to discuss testimony should be would be unwarranted.
    Action of reviewing court in undertaking to go into jury room and saying that juror’s right, to discuss testimony should be thus and thus, or not so and so, would be wholly unwarranted.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    E. P. Dennis was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    Hubert Porman, of Rankin, Howard Mays, S. P. Rose, and O. Ellis, Jr., all of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for ‘the State.
   MORROW, P. J.

The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three and one-half years.

Prom the state’s testimony the jury would have been justified in concluding that Mrs. Rosa Broughten had made arrangements to purchase five gallons of whisky; that the whisky was brought to her house by the appellant ; that no one accompanied him there. He admitted that he arrived at the premises in an automobile, and entered the back door about the same time that the whisky was found by the officers upon the back porch. The officers were in the house at the time of the arrival of the appellant. A conversation took place between him and Mrs. Broughten which the officers did not hear, but which she detailed, stating in substance that she had arranged for the purchase of the whisky, and was expecting it to be brought to her house by some person, and, at the time she became aware that the whisky was there, no one was present save appellant and the officers.

Bills of Exceptions Nos. 1, 2, 3, and 4 relate to the same matter. Prom these bills, as qualified, it appears that officers entered and searched the house of Rosa Broughten, with her consent, and found therein ten half-gallon jars of whisky, which had been placed in the house by the appellant. He was not the owner of the house nor an inmate thereof, and it was the contention of the state that he was not in a position to complain of the search or proof of the result thereof. A similar state of facts was before this court in the case of Craft v. State, 295 S. W. 617. The conclusion there reached and stated seems determinative of the present controversy against the accused.

In bill No. 5 complaint is made of the refusal of the court to charge upon accomplice testimony, as applied to the witness Rosa Broughten.

The court qualified the bill in substance to the effect that there was no evidence upon which to base a-charge on accomplice testimony as relating to Rosa Broughten. Our examination of the statement of facts leads to the same conclusion. In a prosecution un der article 666, P. O. 1925 (the statute upon which the appellant’s conviction rests), it is said in article 670, P. O. 1925:

“Upon a trial for a violation of any provision of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.”

It appears from the testimony, if we comprehend it, that Mrs. Broughten’s connection with the transaction was that of a purchaser. However, if she was co-operating with the

appellant as a principal, transporter, or possessor, slie would still come within the exemptions under the article quoted.

We understand from-bill No. 7 that one of the half-gallon jars of liquor was exhibited to the jury at the time of the trial. The officer who had seized the liquor testified that the other jars had been destroyed. Against the introduction of the testimony, the point is made that the statute (article 692, P. O. 1925), with reference to the duty of the officer seizing the whisky to make a report in writing, etc., precluded the seizing officer from giving the testimony. The same point was made.in Austin’s Case, 97 Tex. Cr. R. 360, 261 S. W. 1035, in which the objection was held untenable. See, also, Burns v. State, 99 Tex. Cr. R. 252, 268 S. W. 950.

In bill No. 10 there is complaint of a transaction in substance as follows: While Ramsey, a deputy sheriff, was upon the witness stand, he detailed a conversation in which he, Mrs. Broughten, and the appellant were present, and in which she said: “Well, if you have found any whisky out there, I guess that it is mine.” Ramsey replied: “I know that is not so; it belongs to Mr. Dennis.” Objection was urged that the statement was hearsay, irrelevant, opinion, and conclusion, and the learned trial judge held it admissible as a part of the res gestee and as a part of a conversation in the presence of the accused. We are constrained to conclude that the bill of exceptions fails to show that in his reasoning the court was wrong. The statement was practically coincident with the discovery of the whisky a few minutes after the appellant arrived upon the premises. It appears from the statement of facts that the appellant was present and made no reply to this remark. The question' of a declaration while under arrest is not involved.

Thére seems to have been no serious contention that the liquor was not intoxicating. It was described as “whisky,” a known intoxicant. The complaint of the experiment demonstrating that the liquid was inflammable presents no prejudicial error.

The judgment is affirmed. ■

On Motion for Rehearing.

HAWKINS, J.

Appellant admits that in the disposition of some of his bills the court is not without authority in following Craft v. State (Tex. Cr. App.) 295 S. W. 617. He insists, however, that the opinion in the latter case is wrong. It is our conviction that such opinion is fortified by the many authorities cited in support of it. So believing, it has been directly followed in Jenkins v. State (Tex. Cr. App.) 299 S. W. 642; Laake v. State (Tex. Cr. App.) 299 S. W. 643. To reopen a discussion of the question would be profitless.

One ground of appellant’s motion for new trial was the alleged misconduct of the jury. The bill preserving this point was not numbered and was not copied in the transcript in connection with the other bills, but was inserted some 20 pages further on. Because of this, it was entirely overlooked in the original consideration of the ease. The bill certifies that no evidence was before the jury showing that appellant had ever been charged with a prior offense; that no evidence was introduced to contradict his own testimony to the effect that he had never handled whisky in any way; that this was the only charge ever made against him; that he had never been arrested in any other case nor charged with a violation of the liquor law in Randall county or anywhere else. It is further certified that during the cross-examination of appellant the district attorney asked if he had not theretofore had about 105 gallons of whisky in Randall county, which appellant denied. No objection was interposed to the question. It is apparent from the testimony-of the jurors given on the hearing of the motion for new trial that the discussion in the jury room on the question of the punishment which should be assessed became heated, some anger was displayed, and harsh words indulged in. One juror, who seemed to be the leader of the ones who were insisting upon a low penalty, testified that he heard a statement from two jurors to the effect that appellant had been caught before, and that the foreman of the jury said he had heard that this was the same fellow who was caught with 105 gallons out in a haystack. The version of the foreman was that some jurors made the remark that the district attorney must know something more on appellant than was brought out in the' trial because of the question he asked, if appellant had not been caught in Randall county with 105 gallons of whisky. Save the testimony of the one juror already referred to, that of all the others may be stated, in substance, to have been that, when the jurors who favored a low penalty asserted there was no evidence before them which showed other than that this was appellant’s first offense, those jurors who were insisting upon a high penalty replied that there must be other charges against him, else the district attorney would not have asked him about the Randall county matter. When fairly considered, we are impressed with the idea that the, examination of the jurors indicated the reception of no additional evidence, but a discussion by them of an incident of the trial and their conclusion therefrom. If there had been objection to the inquiry by the district attorney in regard to the Randall county incident, followed by the jurors’ argument and conclusions, appellant would have had a more tangible basis for insisting upon a reversal. This court, under the circumstances, would scarc'ely be justified in predicating a reversal upon the reference by jurors to something which occurred during the trial not objected to at the time, and no subsequent request for instruction that the jury disregard it.

“ * * * It is within the judicial discretion to overrule a motion for new trial based on the claim of misconduct of the jury and the .action of the trial court will not be overturned on appeal unless it be shown to be clearly wrong. Douglas v. State, 58 Tex. Cr. R. 127 [124 S. W. 933, 137 Am. St. Rep. 930]; 2 Vernon’s Texas Crim. Stat. p. 792; Watson v. State, 82 Tex. Or. R. 305 [199 S. W. 1113]; Alexander v. State, 84 Tex. Or. R. 185 [206 S. W. 362]; Reese v. State, 87 Tex. Or. R. 245 [220 S. W. 1096]; Bernard [Barnard] v. State, 87 Tex. Or. R. 365 [221 S. W. 293].” Todd v. State, 93 Tex. Or. R. 559, 248 S. W. 698.

Applying the foregoing rule to the present instance, we would not feel authorized in concluding that the court’s action in overruling the motion for new trial was erroneous. The argument of the jurors that appellant “must be a wholesale bootlegger,” and therefore his punishment should be increased, does not seem unauthorized by the facts in evidence as to the amount of liquor which appellant is claimed to have been handling on the occasion out of which the present prosecution developed.

We have examined the authorities to which we were referred in the original'brief, and we think none of them, nor that of Holland v. State (Tex. Or. App.) 298 S. W. 898, cited in appellant’s supplementary motion, presents a parallel case.

The motion for rehearing is overruled.

On Application for Heave to Eile Second Motion for Rehearing.

EATTIMORE, J.

In view of the fact that, in the preparation of our original opinion of affirmance, the bill of exceptions setting up misconduct of the jury was overlooked, and not considered, and that same was first passed upon in our opinion on rehearing, the correctness of which is now vigorously assailed in a motion which we are asked to pass upon, we have concluded that fairness would entitle appellant to his day in court upon his motion for rehearing of the matter which so escaped our attention originally.

In passing on the claim of misconduct of the jury, it appears from the record that 11 jurors were used as witnesses and testified before the trial court, whose conclusion of the matter then before him appears in his qualification to this particular bill of exceptions. The point of contention was that, while all the jurors agreed at once upon their retirement on appellant’s guilt, they were divided as to the penalty, and that the penalty agreed upon, viz. -3½ years in the penitentiary, was more than it should have been, and that the length of said term was caused .by improper statements made in the jury room. The testimony of all the jurors is set out at length in the bill under discussion. The right of the jurors to discuss the testimony, which must include what the witnesses affirm and also what they deny, or about which they were doubtful, and of each man on the jury to express his opinions and conclusions regarding same, cannot be . questioned. The manner, bearing, appearance, expression, hesitation, etc., of the witnesses are observed by the jury, and ought to be, and become an important part in the formation of their belief about the guilt or innocence of the accused.

A juror’s right to doubt the truth of an expressed denial of a fact may be perfectly well founded, as based upon manner and appearance and conduct of the witnesses and the surrounding facts. This court would not under any circumstances so far invade the province of the jury as to say that it was improper for jurors to say that they did not believe the testimony of a witness who had answered particular questions in the negative. In this case it appears beyond question that officers, having obtained information of the fact that a quantity of whisky was to be delivered at the house of a woman named Broughten, went to the house, and while there and talking to the. woman the officers observed appellant come in. Said officers presently found ten jars of whisky at a place where they testified it was not when they came in the house, and could not have gotten there except same was brought by appellant. It appears from the testimony of jurors that, in discussing in their retirement the penalty, the only thing considered by appellant’s counsel to be of injury was the fact that some of them expressed their belief that the district attorney would not have asked appellant regarding another liquor transaction, if he had not had some ground for the question.

For a reviewing court to undertake to go into the jury room by a probe, and say that the juror’s right to discuss testimony should be thus and thus, or not so and so, would be wholly unwarranted. The matter is discussed and authorities cited at some length in Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695.

We are still of the opinion that the action of the trial court in overruling appellant’s motion for a new trial was correct, and this motion for rehearing will be overruled. 
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