115 S.W. 1192 | Tex. Crim. App. | 1909
In this case the appellant was convicted in the County Court of Fannin County on a charge of unlawfully selling intoxicating liquors and his punishment assessed at a fine of $100 and sixty days in the county jail.
1. Complaint is made of the action of the court in requiring appellant to proceed with the selection of a jury with only seven jurors present in court and in the box, and the refusal of the court to furnish him with a full panel of twelve jurors. There was no error in the action of the court in respect to this matter. Article 686, Code Criminal Procedure; Speiden v. State, 3 Texas Crim. App., 156; West v. State, 7 Texas Crim. App., 150.
2. Complaint is made of the argument of the county attorney in discussing the case before the jury in which, in substance, it is stated that said counsel told the jury that the appellant was a boot-legger, and had set up in the whisky business and was engaged in the sale of whisky in the town of Honey Grove; that this was not an ordinary case of whisky selling, but was a case of a boot-legger regularly engaged in the whisky business, and that under the law the State is not allowed to prove other sales made by him. This bill is approved by the court with the explanation and statement that the county attorney stated, that the facts in evidence showed defendant was a boot-legger and had set up a whisky shop; that he did not say that the State was not allowed to prove other sales, etc.; that this statement was made by the assistant county attorney, and on objection the jury was instructed orally by the court to disregard the statement; that no charges were prepared and asked to be given by the defendant or his attorney with reference to any alleged illegal argument. We think as presented, in view of the explanation *182 of the court, that the matter is not of such gravity or importance as to require a reversal.
3. The appellant filed a motion in arrest of judgment, calling in question the sufficiency of the affidavit. The ground of the motion is, "that said affidavit is defective, in that it alleges as follows: That `H.C. Lee being duly sworn deposes and says, that before he has good reason to believe and does believe making this complaint in Fannin County, Texas, on or about the 27th day of June, 1908, one Sam Logan did then and there unlawfully sell to James Hunt intoxicating liquors.'" This language is more or less obscure, if not meaningless. There appears in the record before us, a copy of the complaint partly written and partly printed. There is an insertion of some written matter in the affidavit between the words "before" and "making." As we read the affidavit and, as to our minds it is clear that it should be read, it would read thus: "Before me, the undersigned authority, this day personally appeared H.C. Lee, who being by me duly sworn, deposes and says that he has good reason to believe and does believe that before making this complaint in Fannin County, Texas, on or about the 27th day of June, A.D. 1908, one Sam Logan did then and there unlawfully sell to James Hunt." The affidavit is somewhat inartistically drawn, but that it charges an offense against the law seems clear, and we think tested by any fair rule of construction it is sufficient.
There are no other questions in the case demanding discussion. The judgment is affirmed.
Affirmed.