176 S.W.2d 315 | Tex. Crim. App. | 1943
Lead Opinion
Conviction is for selling beer without a permit in an area where it was legal to sell beer by one having such permit, the punishment assessed being a fine of $150.00.
Appellant is a negro woman. The alleged purchaser was C. H. Furlow. He and Wendel Hayden, negro men who were working for the State Liquor Control Board, testified that they went to appellant's place of business in San Angelo on the night of May 28, 1942, and bought beer from appellant, whom they positively identified. They also testified that other persons were present whom witnesses saw buy and drink beer.
It was admitted that appellant had no permit to sell beer. Her defense was that on the night in question she was not at her place of business but was in San Antonio, having gone there to attend a dance. She supported her defense of alibi by the testimony of witnesses who claimed to have accompanied her to San Antonio. This issue was submitted to the jury and determined against appellant on conflicting testimony. *498
Appellant, Ora Lee Gaines, also called "Honey" Gaines, testified that while she was in San Antonio at the time mentioned she bought a pair of shoes from the "El Huarche," a store where they sold such things, and also costume jewelry and curios. She identified a sales slip handed her by her attorney as one she received at the "El Huarche" on May 28, 1942. Appellant then offered said sales slip in evidence. The bill complaining of its rejection shows that the State objected to its admission because it had not been properly authenticated. The sales slip in question as shown in the bill is a follows:
"Date 5-28-1942
"____________________ Address, Cash 1 pair Huarche's Cuerna Vaca $2.50 Mrs. Honey Gaines
'EL HUARCHE' Mexican Curios and Shoes San Antonio, Texas."
In the absence of the jury appellant testified that she saw the saleslady make out the slip, that it was correctly made, and that the writing on it was in the handwriting of the saleslady, and that appellant did no part of the writing thereon.
At this time, by the great weight of authority, sales slips are admissible in evidence where pertinent when shown to have been made in the usual course of business. This is a requisite precedent to the admission of the sales slip where it is proposed to make the slip itself a witness. See Wigmore on Evidence, Vol. 5, Sec. 1523, page 370; American Jur., Vol. 20, Sec. 1068, page 919, and authorities referred to in Notes 15 and 16; American Law Rep. Ann., Vol. 83, page 817.
In support of the position that the sales slip was admissible in evidence appellant has cited McCormick-Ray Tex. Law of Evidence, pages 341 and 343; St. Louis I. M. S. Ry. Co. v. Dodson,
During the course of the county attorney's argument he said, "Gentlemen of the jury, our two main witnesses are inspectors for the Texas Liquor Control Board, and are high-class colored men; otherwise, the Texas Liquor Control Board would not hire them." This argument was objected to as being unsworn testimony of the county attorney, and not in the record.
To sustain her contention that the argument was reversibly harmful appellant relies on Thomas v. State,
The judgment is affirmed.
Addendum
In her motion for rehearing appellant raises the same questions which she presented to this court on the original submission of this case. Each of the questions was discussed quite at *500 length by Judge Hawkins in the original opinion, and we see no need of again reiterating what has already been said, as it would serve no useful purpose. We have reviewed the record in the light of the appellant's motion but remain of the opinion that the questions presented were properly disposed of.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.