150 S.W. 914 | Tex. Crim. App. | 1912
Appellant was prosecuted and convicted of making *102 a sale of intoxicating liquor in Hemphill County, prohibition being in force in said county.
It was admitted that prohibition was in force in Hemphill County, and the State's witness Ben Helton testified that he was in the town of Canadian on the 5th day of last December, and in the morning went into appellant's restaurant and purchased from appellant a drink of whisky and paid him for it; that later during the same day he purchased from appellant a bottle of whisky and paid him a dollar for it, and later in the evening he again went in the restaurant and purchased a drink of whisky paying him fifteen cents for it. Appellant admits that Helton was in his restaurant that day, but says he sold him no whisky, and he got no whisky but one time; that about noon Helton and R.B. Starring were in the restaurant eating chili, and that he gave them both a drink of whisky, and while his back was turned, Helton threw down on the counter two dollars, grabbed the whisky and ran, he telling him not to do so. That he picked up the money and put it on a shelf, and later gave it to Mr. Humphrey with the request to return the money to Helton. Starring corroborates appellant.
The appellant offered to prove by Humphrey that he did give him the $2 with the request to return it to Helton, and that he, Humphrey, tendered it to Helton, but Helton declined to receive it. As the record discloses that this all took place after defendant had been arrested, charged with making a sale to Helton, the court did not err in excluding the testimony of Humphrey. Had he given this money to Humphrey to be returned to Helton prior to being charged with this offense, it would be admissible, but acts of this character, what he said and did, after being charged with the offense, are never admissible in evidence.
The sheriff was permitted to testify that after being informed of this offense he went to appellant's place of business to search for whisky, and while talking to appellant about the matter, appellant's sixteen year old boy was standing there and said: "If you will let him off this time, I will see he does not sell any more whisky. Mamma and I both have tried to get him not to do that." Defendant admits he heard his son say this to the sheriff and the testimony shows he made no reply to the remark, and no denial of the statement that the boy and his mother had been trying to get him not to sell whisky. There was no error in admitting the evidence. (Browning v. State, 26 Texas Crim. App., 432; Moore v. State, 15 Texas Crim. App., 1; Conner v. State, 17 Texas Crim. App., 1; Bennett v. State, 48 S.W. Rep., 61.)
Defendant testified that the bottle of whisky in the house belonged to him and Frank Deal; that they had ordered it for their own use. He then offered to prove by Frank Deal that he (appellant) reported to Deal: "Frank, some son-of-a-gun came in here awhile ago and got our bottle of liquor and ran off with it." There had been no effort *103 to impeach defendant by proving contradictory statements or otherwise, and the court did not err in not permitting Deal to corroborate appellant's testimony. (Red v. State, 40 S.W. Rep., 408; Riojas v. State, 36 Tex.Crim. Rep..)
Evidence of three sales on the same day were admitted without objection. Defendant did not request the court to require the State to elect on which sale it would seek a conviction, but after the jury had returned its verdict, defendant moved for a new trial on the ground that the verdict did not specify for what sale they convicted him. The defendant can plead this judgment in bar of any other prosecution for sales on that day, and the court did not err in refusing to grant a new trial on that ground. If the defendant had objected to this testimony, doubtless the court would have sustained the objection to all evidence except one sale; not objecting, if after the testimony was admitted, defendant had requested the court to require the State to elect for which sale it would seek a conviction, doubtless the court would have sustained his motion. The request comes too late after verdict.
This is a misdemeanor, and there were no exceptions reserved to the charge of the court, but there was an exception reserved to the failure of the court to give a special charge requested. Under the evidence this charge was not the law of the case. The charge requested was based on the evidence of defendant and Mr. Starring, and requested the court to instruct the jury that if defendant did not accept the money for the bottle of whisky to acquit him. As there were two other sales testified to by the State's witness — a drink in the morning and a drink in the evening — which he says he paid fifteen cents each for, the court did not err in refusing the charge. (Sparks v. State, 23 Texas Crim. App., 447; Perkins v. The State,
The indictment is drawn in form frequently approved by this court, and there was no error in overruling the motion in arrest of judgment. Branch's Crim. Law, section 544.
The evidence amply supports the verdict and the judgment is affirmed.
Affirmed. *104
