90 S.W. 30 | Tex. Crim. App. | 1905
Appellant was convicted of violating the local option law, his punishment being fixed at a fine of $50 and twenty days confinement in the county jail.
As explained by the court, we do not believe there is anything in appellant's bill of exceptions to the argument of the county attorney, insisting on giving appellant the highest penalty in case they found him guilty.
Nor was it error for the State to prove, as was done, by the defendant when he was placed upon the stand on his own behalf, that he had been charged before a justice of the peace with passing counterfeit money; that he was then under bond to await the action of the grand *618 jury on said charge. This was a sufficient charge or accusation against defendant of a felony, and it was competent for the State to thus attempt his impeachment.
Appellant complains that the court refused to give his special requested instruction to the effect, that if appellant was so drunk at the time of the alleged transaction as not to know what was going on, to acquit him. The court gave a charge embracing this matter, which we think was sufficient.
Appellant excepted to the court's charge on ratification of the contract. There was some testimony bearing on this question, and in our opinion the court was authorized to give the charge on ratification.
Appellant excepted to the action of the court permitting the State to prove another sale of liquor on the same morning, and just before the transaction in question. It appears from the record that Sam Powell was introduced by the State, and testified that he met appellant that morning, saw him get off of the train. "Asked him if he had anything. He said: `Yes,' we went into Sander's cotton yard, and defendant drew me a pint out of a quart bottle, and I paid him 50 cents for it." This was objected to by appellant on the ground that the prosecuting witness had testified plainly that he had bought a pint of whisky from defendant on the same day, to wit: the 18th of August, 1904, and paid him 50 cents therefor. That said sale occurred in Andy Lewis' barber shop, and that the question of intent, system, or res gestæ was not in issue in the case. It will be seen, however, that appellant denied the sale altogether, and claimed that if any sale was made he was too drunk to realize or understand what occurred. Now, it occurs to us that the proof of another sale of liquor just preceding the sale in question was competent evidence to rebut appellant's defense, and served to show his knowledge and intent at the time of the second transaction, and in that respect to sustain the State's theory as presented in the evidence. We are aware that the decisions on this character of testimony are not altogether reconcilable. This is owing to the fact that while the principle authorizing its admission is well understood, yet in its practical application, there is often difficulty. But, as we understand the cases, wherever some other sale would serve to show system, or to show knowledge or intent at the time of making the alleged sale, in order to rebut some defense set up by appellant, this character of testimony is admissible. Pitner v. State, 37 Tex.Crim. Rep.; 39 S.W. Rep., 662; Walker v. State, 44 Tex.Crim. Rep.; 7 Texas Ct. Rep., 8. The judgment is affirmed.
Affirmed. *619