
    (86 Tex. Cr. R. 446)
    HARPER v. STATE.
    (No. 5592.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1919.
    On Motion for Rehearing, Jan. 21, 1920.)
    1. Criminal uw c&wkey; 1090(1) — Matters OCCURRING AT TRIAL ARB NOT REVIEWABLE WITHOUT BILL OF EXCEPTIONS.
    Complaints of matters occurring at the trial cannot be considered where no bills of exceptions were reserved to any of them.
    2. Intoxicating liquors <&wkey;239(l) — Instruction as to possession of liquor sufficiently DEFINED “PUBLIC PLACE.”
    An instruction that, before defendant could be convicted for the unlawful possession of liquor, he must have had it in his possession at or around a railway depot as claimed, and the jury must find that it was a place to which persons resorted for the purpose of business and boarding trains for the purpose of transportation, etc., sufficiently defined “public place.”
    [Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Public Place.]
    Intoxicating liquors <&wkey;139 — Intent to REMAIN IN PUBLIC PLACE IS NOT ELEMENT OF UNLAWFUL POSSESSION.
    To make one guilty of the possession of intoxicating liquor in a public place under Acts .'!.~th Deg. Fourth Called Sess. (1918) c. 31, § 3. it is not necessary that he intends to remain in |he public place where he is charged with having possession of liquor.
    4. Intoxicating liquors <&wkey;139 — Statute PROHIBITING POSSESSION IN PUBLIC .PLAOE IS VALID.
    Acts 35th Leg. Fourth Called Sess. (1918) c. 31, § 3, prohibiting the possession of intoxicating liquor in public places, is valid and not in conflict with the Webb-Kenyon Act.
    On Motion for Rehearing.
    5. Intoxicating liquors &wkey;>230(6%) — Evidence OF UNLAWFUL POSSESSION IN PUBLIC PLACE SUFFICIENT.
    Evidence held sufficient to show defendant’s guilt of the possession of intoxicating liquor in a public place and to show that the liquor was not for use in his own home.
    6. Criminal law &wkey;>1144(14) — Record must SHOW TIME OF PRESENTATION OF REQUESTED INSTRUCTIONS to render refusal ground FOR REVERSAL.
    Under Acts 33d Leg. (1913) c. 138, regulating instructions in criminal cases and requests therefor, the refusal of an instruction, though correct, is not ground for reversal, unless the record discloses facts showing its presentation before the main charge was read, though in the record the charge states that it was requested and closes with its refusal.
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Earnest Harper was convicted of an offense, and he appeals.
    Affirmed.
    Oscar H. Calvert, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted and sentenced in the criminal district court of Dallas county to one year in the penitentiary, for the offense of having in his possession certain intoxicating liquor at a public place in Dallas county; the same being territory where the sale of such liquor was prohibited under the Constitution ‘and laws of Texas.

The indictment contains four counts, only one of which was submitted to the jury; said counts substantially charging that in said dry territory appellant did then and there unlawfully have and keep in his possession certain intoxicating liquor, to wit, whisky, in a public place, to wit, in and around the railroad station of the town of Rowlett, Tex.; the same being a public place, etc.

Appellant’s first contention herein is that the evidence does not support the verdict. We think the evidence abundantly shows that appellant got off the train at Rowlett, five or six miles distant from Dallas, Tex., with two grips, in which were 30 pints of whisky, and that the place where he had said whisky was a “public place,” such as comes within the terms of section 3, c. 31, Acts of the Fourth Called Session of the Thirty-fifth Legislature. No contention is made but that this was .within territory commonly known as “local option” territory, and it was admitted by all parties that the sale of liquor had been therein forbidden.

We think the state’s proof abundantly shows that appellant’s purpose in bringing the liquor to Rowlett, and in getting off the train there, was to evade probable arrest for bringing same in to the city of Dallas. It was shown:

That a couple of days before his arrest he was in the town of Garland, and was heard to say to some one:

“Crank up your car. I am coming in on the Flyer this evening, and I want to see if one of these damned officers can catch me or not.”

That he bought a ticket that day and went to some point in Louisiana, where he procured the two grips full of liquor and returned to Rowlett. When the train arrived, the officers were watching for him, and saw him get off the train at the east end of the depot, and cross over the public road to some stores. They there accosted him and asked him what he had in the grips, and he demanded to know if they had a warrant for him. When they told him they had not, he refused to let them see the contents of the grips. They investigated one of the grips, and found it to contain whisky in pint bottles, and proceeded to carry him to Garland, where there was a magistrate. When they reached Garland, he objected to their investigating the smaller grip, claiming that there was nothing in it but tools; but its contents were also found to be whisky.

Appellant tools the stand and swore that he had been .a bartender in Dallas before the town went dry, and that he wanted to get and got the whisky in question for his own use, and was on his way home from Louisiana with it; that he merely got off the train at Rowlett to see a friend whom he had heard was very sick; that he had not seen this friend for several years..

The claim made by appellant that he got off the train a short way back from the depot, and from there walked across to the stores, and that where he got off said train was not a public place, does not seem to us worthy of consideration.

The state’s witnesses testified that the place where he was with the liquor was one to which people resorted for the purposes of business and boarding trains, etc., and we do not think there is anything in the contention. Rowlett was not his home, nor was the depot, the stores, or the road his home in any sense; nor did he so claim.

Complaint is made of various matters occurring at the trial; but no bills of exceptions were reserved to any of them, and we are therefore not at liberty to consider same. But one objection was made to the charge of the trial court, same being on the ground that the court failed to define a public place; but an inspection of the charge shows that the court instructed the jury that, before appellant could be convicted, he must have had said liquor in his possession at or around the depot at Rowlett, and that they must find that same was a place to which persons resorted for the purpose of business, and boarding trains for the purpose of transportation, etc. We think this was a sufficient definition of a public place in said charge. Nor do we think the court erred in refusing special charge No. 2, asked by appellant. It is not necessary, in order to make one guilty, under this statute, that he intends to remain in the place where he is, charged to have had such intoxicating liquor.

“in Ex parte Fulton (No. 5337) 215 S. W. 331, an opinion recently handed down by this court, we upheld the constitutionality of this statute, and reference is made to said opinion for the authorities and reasqning at length. We do not think said statute is in conflict with the Webb-Kehyon Act (U. S. Comp. St. § 8739).

Finding no error in the 'record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

This case is before us on appellant’s motion for a rehearing, in which but two matters of objection to the opinion are presented, namely: (1) That we should not have held the evidence sufficient to support the verdict; (2) that we were wrong in upholding the action of the trial court in refusing special charge No. 2, asked by the appellant.

We add to what we said in the opinion, as to the sufficiency of the evidence, this: That appellant lived in Dallas, and, shortly before his arrest in the instant case, was in Rowlett, a village five or six miles distant from Dallas, and was overheard boasting that the officers could not catch him. He was suspectéd and watched by the officers, and, when he bought a ticket for an eastbound train, they investigated, and found that he had bought one for some point in Louisiana; and that the earliest date he could return from said point would be the ■following Saturday. On that day, appellant did return with two grips full of whisky. He alighted at said little village, and was shortly thereafter accosted and arrested by the officers, to whom he made'false statements as to what he had, and to whom he also refused to disclose the contents of his grip's. It is true, under the statute, one may have in his own home intoxicating liquor, under certain conditions; but the fact that one makes a journey of several hundred miles, apparently for no purpose except to procure 30 pints of whisky, and that he misrepresents and tries to secretly convey the licfuor, comports more with the attitude of one who seeks to evade the law and to carry out a boast'that the'Officers eannot catch him, rather than the conduct of one who wanted liquor for use in his own home. We think the jury were fully justified in finding him guilty.

Even if we should conclude that special charge No. 2 did present .a correct statement of the law involved in line with Ex parte Fulton, 215 S. W. 331, we further observe that .there is nothing about said charge, as it appears in the record, to show when it was presented to the trial court and by him refused. Our statute requires that such charges must be presented to the court before the main charge is read to the jury, and in the absence of any showing that such was the case, and in view of the fact that every presumption is indulged in favor of the correctness of the action of the trial court, we would uphold the refusal of such charge by the lower court, even if the same contained a correct statement of the law. See Acts 33d Legislature, Regular Session, p. 278; Vernon’s O. O. P. p. 525, note 63. It is not. sufficient that the record shows a charge which states at its beginning that it is “special charge No. 2, requested by the defendant,” and which closes with the refusal of the trial court. Such a charge must disclose the facts necessary tq enable us to determine when it was presented, and to inform us that it was presented in time.

No error appearing, appellant’s motion for a rehearing is overruled. 
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