147 S.W. 229 | Tex. Crim. App. | 1912
Lead Opinion
Upon complaint and information the appellant was charged with unlawfully selling to Estell Furlow intoxicating liquors on December 6, 1910. He was convicted and fined $50, and given 30 days in jail.
The state proved by said Furlow that he was 20 years old; that he lived, and had lived for many years, at Alvord, Tex.; that on December 6, 1910, he bought from appellant one pint of whisky at Alvord, in Wise county, and paid him $1 for it; that-John Graham was with him at the time; that he and Graham started from the main street of the town down to the Malone gin, situated about 300 yards from the main street; that they met defendant coming from the gin, and asked him if he had any whis-ky ; that he denied it; then they told him they had to have some, and were going to get it if it could be found. Appellant then said he might get it for them. “I saw a pint bottle in his overcoat pocket. I handed him a dollar, and he took it, and asked me to go to the gin with him. I went into the gin with him, and he gave me the pint of whis-ky.” This was in the forenoon about 11:30 o’clock. Appellant took the whisky out of his pocket when he delivered it to the witness.
The other witness, John Graham, testified that he was 21 years old, lived, and had lived for many years, on a farm with his mother about one mile from Alvord; that on December 6, 1910, he was with said witness Furlow; that they started from the main street to the Malone gin, and met the defendant about half way; that they proposed to buy some whisky from him; that he first denied having any, but after awhile agreed to let them have it; that Estell Furlow paid him a dollar; that he had paid to Estell Furlow 50 cents of the money up town before they went down there; that defendant then went to the gin, Estell going with him; that Graham remained where they were; that Estell returned with the pint of whisky.
Both of these witnesses testified that Mr. Ratliff!, the county attorney of Wise county, had an arrangement with Furlow by which he was to catch bootleggers in Alvord and agreed to pay him $2.50 cash for every case reported to him and $2.50 more where the party was convicted; that, when they got this whisky, they marked the bottle, the date of the purchase, and reported to Mr. Ratliff, who then paid Furlow; that he got John Graham to go into the matter with him as his partner, and he divided with him half and half.
Furlow further testified that where they met the appellant at the time, half way between the gin and the main street, there was a lumber yard and houses close by, “and I suppose that was the reason defendant wanted us to go to the gin to get the whisky.” It was admitted on the trial that what is known as the local option law had been in force in Wise county for many years before December 6, 1910, and was in force on that date.
Appellant himself testified that he had a family, wife, and children, and then lived and had for many years lived at Alvord, in
The statement of facts shows that four persons, naming them, and many other citizens of Alvord, testified that they had known appellant in and about Alvord for many years, knew his general reputation for truth and veracity, and for being a peaceable and law-abiding and orderly man, and that such reputation was good. The state also proved by Mr. Branch, the sheriff of Wise county, that E. M. Layton was present at the trial attending the court; that on January 7th he attempted to summon the witness Railey, and found that he had left Wise county, and gone to Hardeman county, and told defendant of that fact. It was admitted that no further process had been issued for that witness. The state also proved by Rev. Wells that he was a near neighbor of the witness Taylor for whose absence ‘the motion for a continuance■ was made; that he got butter and milk at Taylor’s-house, and Taylor was at his house on January 7, 1911, and said witness’ wife was up and at work at that time, and Taylor was at work at a gin about one-fourth of a mile from his house, and that on the morning before the trial he had seen her standing in Taylor’s yard. The state also introduced in evidence the appellant’s motion for continuance to which particular attention will hereafter be called.
Next appellant complains that the court erred in overruling his motion for a continuance or postponement of the case. This application to continue or postpone was made on account of the absence of R. L. Taylor, E. M. Layton, and Tom Railey. The application first states that all the parties were residents of Alvord, in Wise county. It also states “that said Tom Railey resides in Wil-barger county, Tex.”; that on January 6, 1911, he had a subpoena issued to Wise county for all three of those witnesses, he believing at that time that they all resided in Wise county, but that on January 7th he was informed that Railey had left there about 10 days before that for Wilbarger county; that he expected to prove by Taylor and Layton as follows: “That at the time of the alleged sale of the intoxicating liquors to Estell Furlow, and for a long period prior thereto, the defendant worked at the gin at Alvord operated by R. L. Taylor, and worked under the observation and control and direction of said Taylor, and said Taylor will testify that the general character of defendant for being a peaceful and law-abiding man in the community is good, and that be will further testify that during said time and at the time said liquor is charged to have been sold this defendant kept no whisky or intoxicating liquors in or about said gin, and did not handle any such liquors, these facts will become material on the trial of this case in view of the testimony of the said Furlow, who defendant is informed and believed will testify that this defendant sold and delivered him the liquor in question at said gin and kept said liquor in said gin, and defendant expects to prove the same facts by the witnesses Lay-ton and Railey who worked at said gin; that is, that witness Layton worked at said gin, and Railey was in and about said gin during the time said liquor was said by said state witness to have been sold and delivered.” No reason is shown by the application for the absence of any of the witnesses except Taylor. Taylor was not there because his wife was sick and about to be confined, and the witness was unable to leave her to attend this court.
One ground of the motion for new trial
There being no reversible error shown, the judgment will be affirmed.
Rehearing
On Motion for Rehearing.
All the other questions again presented by the motion for rehearing w.ere discussed and correctly decided against appellant in the original opinion. It is unnecessary to discuss any of the questions again.
The motion is overruled.