
    RANDOLPH v. STATE.
    (No. 9461.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Nov. 4, 1925.)
    1. Intoxicating liquors <§=>236(61/2) — 1Convic-tion of possession for sale held supported by evidence.
    Evidence iheld sufficient to support conviction of possessing intoxicating liquors for sale.
    2. Criminal law <$=>537 — Defendant’s admission to officer leading to finding of liquor held admissible.
    In trial for possessing intoxicating liquors for sale, defendant’s admission to officer, before they went to Pullman car in which liquor was found, that he had whisky in such car, held admissible as leading to finding of liquor, though defendant was under arrest and unwarned.
    3. Criminal law <$=>364(4) — Defendant’s statements to officer after producing whisky in his possession held admissible as res gestee.
    In trial for possessing intoxicating liquors for sale, defendant’s statements to officer, after they went to Pullman car where defendant produced whisky, held admissible as res ges-tee, whether defendant was Under arrest or not.
    4. Criminal law <$=>761 (9), — Charge that possession of more than quart of intoxicating liquors is prima facie evidence of guilt held not error as assuming disputed fact.
    In trial for possessing intoxicating liquor for sale, charge in language of Acts 38th Leg. (1923) 2d Called Sess. c. 22, § B, that possession of more than one quart of such liquors is prima facie evidence of guilt, held not on weight of evidence as erroneously assuming that accused was in possession of more than quart of intoxicating liquor, where such fact was not disputed.
    5. Criminal law <§=>1184 — Sentence to two years in penitentiary reformed in conformity with Indeterminate Sentence Law.
    Judgment and sentence to two years in penitentiary on conviction of possessing intoxicating liquors for sale will be reformed by making sentence not less than one nor more than two years, in conformity with Indeterminate Sentence Law.
    On Motion for Rehearing.
    6.Criminal law <§=>406(1) — Defendant’s admission to officer that he had liquor in Pullman car held not' inadmissible because officer already knew there was liquor therein.
    In trial for possessing intoxicating liquor for sale, testimony as to defendant’s admission to officer, at about time of his arrest, that he had liquor in Pullman car, held not inadmissible because officer already knew there was liquor therein, where he knew nothing of kind, character, or location of particular liquor found as result of defendant’s statement.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    E. L. Randolph was convicted of possessing intoxicating liquors for sale, and appeals.
    Affirmed as reformed.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   LATTIMORE, J.

From conviction in district court of Taylor county of possessing intoxicating liquors for purposes of sale, with punishment fixed at two years in penitentiary, this appeal is taken.

Appellant was a Pullman porter. A Pullman car was set out by tbe railroad company and was in tbe yards at Abilene. An officer, acting upon information conveyed to him, went to appellant, who was-near tbe car mentioned, and asked him how much stuff be had in that car. Appellant replied, asking tbe officer wbat be meant, and tbe officer said, “How much whisky have you got in that car?” to which appellant replied: “Well, you have got me, Mr. Jennings; I have got it.” Tbe officer then said to appellant that they would go and get it, and tbe two men walked up to tbe Pullman. When they reached tbe car, tbe officer said to appellant, “Where is it?” and appellant reached up under an upper berth and pulled down a suit case, and then reached under a lower berth and pulled out another and said that was all he bad. Tbe officer then said, “Be sure that is all, because I am going to search it,” and thereupon appellant reached over on tbe other side of tbe aisle and; pulled out another suit case and again said that was all. Tbe officer testified that tbe liquor in the suit cases was Mexican whisky, and that it was intoxicating. No controversy is made of tbe fact that same was intoxicating. Tbe facts are deemed sufficient to support tbe judgment. '

There are two bills of exception, each seemingly complaining of substantially tbe same matter; that is, the conversation that took place between appellant and the officer, it being objected that appellant was under arrest and had not been legally warned, and that his statements were made in response to questions propounded to him by the officer. In his first bill of exceptions it is also made to appear that after the court had overruled the objections to the introduction of the testimony, made upon the ground above stated, appellant asked the court to instruct the jury 'not to consider the testimony Of the officer for the reasons, first, that appellant was- under arrest and had not been warned, and, second, that the statements made by appellant to said officer were after he was under arrest and were in response to questions propounded by said officer, and that the said statements of appellant did not lead to the discovery of the whisky. There is an apparent effort in said bills of exception to draw a legal distinction between the rules governing the statement made by appellant to the officer before they went to’the car, and the statements made after the car was entered by them. Our views in regard to same are that no error was committed in admitting any of the testimony.

Appellant was the Pullman porter in charge of a sleeping car which ran to Abilene and was there set out on the side tracks. The conversation that took place between appellant and the officer before they went to the car was clearly admissible because of the fact that the statements then made-by appellant were found to be true and led to the finding of the illegally possessed liquor. In such case the fact that the accused is under arrest and unwarned cuts no figure. After this conversation ended and appellant and the officer went to the Pullman, where appellant produced the whisky which he had in his possession, the statements made at that time and place were admissible under the rule of res gestfe. The charge was the unlawful possession of intoxicating liquor. Appellant was then and there in possession of it. ’His statements were res gesta of his possession and of thé transaction resulting in his being found in such possession by the officer. Res gesta statements are admissible under that rule, regardless of whether the accused be under arrest or not.

Appellant excepted to part of the court’s charge which is as follows:

“You are charged that the law provides that the possession of more than one quart of intoxicating liquors shall be prima facie evidence of the guilt of the person charged.”

The criticism of said charge is that it assumes the accused was in possession of more than a quart of intoxicating liquor, and assumes that the liquor was intoxicating, and that such charge is on the weight of the evidence. We observe that the testimony was before the court without dispute of the fact that appellant was in possession of more than a quart of intoxicating liquor, he having in fact three suit cases or thirty-four quarts of such liquor. It is also without dispute that the liquor was intoxicating. Said charge is not on the weight of the evidence, but is in the language of the statute. We might further observe in this connection that, had appellant in any way undertaken to explain his possession of such intoxicating liquor, it would have been incumbent upon the court to have given the remainder of the law passed by the Thirty-Eighth Legislature (Acts 3Sth Leg. [1923J 2d Called Sess. c. 22) on this subject, which is, in substance, that the accused has the right to rebut by testimony the presumption arising from his possession of more than a quart of liquor. We have considered the able brief filed by appellant, but do not consider any of the numerous authorities therein to hold to the contrary of what we have said.

We observe that the judgment and sentence are for a period of two years in the penitentiary. This is not in conformity with our Indeterminate Sentence Law (Acts 33d Leg. [1913] c. 132). Said judgment and sentence will be corrected and reformed so as to adjudge and sentence appellant to be guilty and to be punishable by confinement in the penitentiary for not less than one nor more than two years.

Binding no error in the record, the judgment and sentence as reformed and corrected will be affirmed.

On Motion for Rehearing.

In an able motion and argument, showing extended investigation of the authorities, appellant urges error in our former opinion. We are in entire accord with the' authorities cited by appellant, but find ourselves unable to agree with the contention made that they apply to the instant case. The statement of facts is very short, containing only two pages, and we find absolutely nothing therein supporting appellant’s insistence that his objection to testimony, as to his statement made about the time of- his arrest, should have been sustained because the officer already knew of the intoxicating liquor in the Pullman ear. Said statement of facts shows that the officer had received information which led him to believe that appellant was selling whisky, and this caused him to make the investigation which led to the finding of the intoxicating liquor in appellant’s possession. This led us to say in the original opinion that the officer, “acting upon information conveyed to him, went to appellant,” etc. This statement of ours largely forms the basis for the ingenious argument of appellant’s counsel. The sheriff did not know anything of the kind, character, or location of the particular liquor found by him in pursuance of the statement made by appellant. The authorities cited in the motion seem to ns to hare no application. We believe that, for both of the reasons assigned in the original opinion, the statements made by appellant to the sheriff were admissible as evidence. The record discloses that it was the custom for the Tesas & Pacific Railway Company to set out at Abilene a Pullman car, and that appellant was the porter who accompanied said Pullman. There is no suggestion in the record, and we have no reason to believe, that a conductor was set out at the same time, or that any one else had anything to do with the Pullman while it was on the side track at Abilene, save and except appellant.

Not being able to agree with the contentions made, the motion for rehearing will be overruled. 
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