Henderson v. StateHenderson v. State
Lead Opinion
Aрpellant was convicted, of violating the local option law, and his punishment assessed at a fine оf $50 and thirty days confinement in the county jail; hence this appeal.
Appellant excepted to the action of the court in permitting the witness Frank Overton to state that when he came from the rear of the pool-room, after purchasing some whisky from appellant, he came directly across the street by the Cleburne Grocery store, and he there saw the sheriff, and another" man whom he took to be Dug Wade. This was objected to on the ground that it was a transaction between other parties not had and madе in the presence or hearing of the defendant, and was immaterial and inadmissible. As presented in this bill, the testimony does not appear to be pertinent, but it does not appear to be harmful, and could not be ground for reversal, because the bill does not show how such testimony could affect appellants However, as we take it from other portions of the record, this testimony was admissible inasmuch as the sheriff testifiеs that he saw the transaction between appellant and the prosecutor Frank Overton, and that Overton came immediately to where he was. This serves to identify the transaction.
When appellant was оn the stand in his own behalf, he testified in regard to the same transaction in which the witness Overton had testified against him, аs to the sale of whisky, that instead of the prosecutor buying whisky, that he bought the half pint of whisky from the prosecutоr. On cross-examination he was asked if he had ever told about this transaction before. He answered that he had not. This was objected to by appellant. In our opinion this testimony was properly elicited frоm appellant on his cross-examination. He claims, as a matter of defense, that he had not bought thе whisky from the prosecutor, that the prosecutor had at that time bought a bottle of whisky from him, and it was pertinent, it occurs to us, to prove by him that he had never mentioned that matter before. The fact that the Statе could make use of such testimony to impugn the credit of appellant, was the very reason affordеd for its admission.
During the argument of the case, in closing for the State, the county attorney said that the evidence in this ease shows not only that the defendant made the sale to the prosecuting witness in this case, but that hе is engaged in the sale of intoxicating liquor. This was objected to by appellant, and a charge was аsked eliminating this from the consideration of the jury, it being claimed that there was
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no evidence to justify such deсlaration. In support of appellant’s contention we are referred to Taggart v. State, 17 Texаs Ct. Rep., 74, and
Affirmed.
Addendum
ON MOTION FOR REHEARING.
March 22, 1907
On a former day of this term the judgment in this case was affirmed. Appellant files a motion for rehearing with an application for certiorari, which is based upon the fact that in signing qp the statement of facts in the court belоw, instead of copying- the minutes of the court in regard to calling, holding and declaring result of the electiоn, publication, etc., as required by law, it is not sufficient to mark in statement of facts “here copy the record or records.” And but for another proposition the certiorari would be awarded.
The State meеts the motion for certiorari and motion for rehearing by affidavit showing that the statement of facts was agrеed upon and in fact deposited with the clerk after the expiration of the time allowed for filing, and bj agreement the filing of said statement of facts was dated back within the twenty days allowed by the order of the сourt. There is no contest of this motion, so we take it as a correct statement that it was filed back instead of being filed on the day it was deposited with the clerk. This cannot be done. The motion of the State to strike out the statement of facts in opposition to the certiorari will be sustained, and the certiorari is refused. The motion for rehearing is overruled.
Motion overruled.