Allen v. State

• Citation: 73 S.W. 397
• Parties: ALLEN v. STATE.
• Decision Date: 26 March 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

73 S.W. 397

ALLEN v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1903.

Appeal from Dallas County Court; Ed S. Lauderdale, Judge.

W. D. Allen was convicted of selling liquor on Sunday, and appeals. Reversed.

Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of violating the Sunday law, and fined $20.

The first bill of exceptions complains that while appellant was on the stand, testifying in his own behalf, and after he had denied the facts upon which the prosecution is predicated, state's counsel, on cross-examination, asked appellant if since the 23d of June, 1901 (the date alleged in the indictment), he had not kept his saloon open for business, and had not sold stuff to different parties. To which appellant objected for the reason that what he did since the indictment would not be relevant evidence in the case on trial against him, and could not possibly throw any light on his guilt or innocence. Whereupon the court overruled said objections, and stated that it made no difference whether it was before or after. Appellant stated, after the objections were overruled, that since said indictment he had sold on Sunday, or, in other words, violated the law, for which he was on trial. Appellant's counsel also objected to the prosecuting attorney asking defendant the following questions: "You are not too good to violate the Sunday law, are you, and you don't claim you are not guilty because you are too good?" Appellant objected because irrelevant, illegal, hurtful, highly prejudicial to defendant, and had its birth in a desire upon the part of counsel for the state in an attempt to belittle defendant, and arouse in the minds of the jury a prejudice against him. To this bill the trial court appends this explanation: "June 10, 1902. This bill presented to me late in afternoon of last day it could be filed, and is disapproved because it is incorrect. Attorney for state did ask defendant if his saloon had not often before and since June 23, 1901, been open for traffic on Sunday, and defendant's attorney objected, and objection was overruled; and defendant answered that it had been open at other times on Sunday. And attorney for state did ask other questions mentioned in bill, and defendant's objection was overruled. And court did use substantially the language used in the bill." As we understand this qualification, it practically concedes appellant's contention as stated in the bill, and under the following cases the testimony would be admissible: Lynn v. State (Tex. Cr. App.) 22 S. W. 878; Dickey v. State (Tex. Cr. App.) 56 S. W. 627. However, in Freedman v. State (Tex. Cr....