Asher v. State

• Citation: 277 S.W. 1099
• Decision Date: 27 June 1924
• Docket Number: (No. 7688.)
• Parties: ASHER v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

277 S.W. 1099

ASHER v. STATE.

(No. 7688.)

Court of Criminal Appeals of Texas.

June 27, 1924.

Rehearing Denied November 4, 1925.

On Application for Leave to File Second Motion for Rehearing December 2, 1925.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Charles Asher was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Frank S. Roberts and John W. Hill, both of Breckenridge, for appellant.

S. J. Osborne, Asst. Dist. Atty., of Breckenridge, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant and his wife were keepers of a hotel in the city of Breckenridge. The witness Savage testified that he purchased from the appellant some whisky for which he paid him $2. Savage claimed that Hedgespeth was present. According to his testimony, Savage and Hedgespeth had received marked money from the mayor of the city with which to buy whisky. There was evidence that some of this marked money was later found in the possession of the appellant.

The record is voluminous. There are many bills of exception.

A motion to change the venue was made. This bill was not filed with the clerk until after the adjournment of the term of court. The verdict was returned on the 22d day of October, and the stenographer was immediately called upon for a statement of facts. This was completed on the 26th day of October and attached to the bill, which was presented to the district attorney on the 27th of that month. He declined to approve it for want of time in which to examine it. It was presented on the last day of the term, the 28th of October, to the trial judge for examination and approval. He declined to take immediate action, but later approved and filed it with the clerk. Appellant's counsel appears to have been diligent. An examination of the bill leads us to the conclusion that we are not warranted in holding that, in refusing to change the venue, the learned trial judge abused his discretion. The bill reveals certain activities of the mayor of the city in endeavoring to engender sentiment in favor of the enforcement of the law prohibiting the liquor traffic. A mass meeting was called, and speeches were made. We fail to perceive anything, however, in the record which would point to prejudice against the appellant or a prejudgment of his case. In the absence of an abuse of the discretion vested in the trial judge, the refusal to change the venue is not ground for a reversal on appeal. Parker v. State, 81 Tex. Cr. R. 397, 196 S. W. 537; Baker v. State, 87 Tex. Cr. R. 213, 220 S. W. 326; Dodd v. State, 83 Tex. Cr. R. 160, 201 S. W. 1014; Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822.

The witness Deason, according to his testimony, intercepted Savage and Hedgespeth after they left the place of the appellant and took from Savage a pint of whisky. Hedgespeth at the time stated that it had been obtained from Asher's place. The court overruled the objection made upon the ground that the testimony was hearsay. The bill fails to negative the presence of the appellant or to show the irrelevancy of the evidence; nor does it negative the theory that the testimony may have been proper under a predicate for the impeachment of the witness Hedgespeth. As the matter is presented, we are unable to conclude that that error is revealed. The legal presumption is in favor of the correctness of the court's ruling. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612; Branch's Ann. Tex. P. C. § 207, p. 132. A bill complaining of the admission of evidence should be so explicit as to enable the court to determine from it whether it was properly received; and where, as in the present case, the evidence may have been admissible as res gestæ or impeaching, and the bill fails to reveal the contrary, the presumption in favor of the court's ruling must prevail. Eldridge v. State, 12 Tex. App. 208; Livar v. State, 26 Tex. App. 115, 9 S. W. 552.

In bill No. 4 is preserved the complaint of the refusal of the court to continue the case. The application is not based upon statutory grounds but upon alleged equitable grounds in that "public agitation of the practice of bootlegging and the activities of the Ku Klux Klan had created an atmosphere so unwholesome for those charged with the unlawful sale of intoxicating liquor as would make improbable a fair trial." Such an application must necessarily be left to the discretion of the trial court. In the present instance, the bill is so qualified as to strip it of any vitality. The court declined to verify the statement of facts contained in the bill, and refers this court to the entire statement of facts to show that there was no combination of influential persons against the accused, that he was practically unknown, and his case had been heard of by but few. We have observed no such evidence of prejudice against the appellant or his case as would authorize a decision by this court that in overruling the application the learned trial judge abused his discretion.

Bill No. 5 asserts that the panel from which the jury was drawn consisted of 13 regularly drawn jurymen and 12 talesmen; that 12 of the veniremen were residents of the city of Breckenridge, in which there had been held a mass meeting, the nature of which is not revealed. The names of the talesmen selected are given, and it was charged that they were in the main residents of the city of Breckenridge; that 5 members of the panel had attended the mass meeting mentioned; that 12 of the veniremen were challenged for cause upon the ground that they had attended the mass meeting, and had also acted as jurors in the trial of another person for the same offense as that for which appellant was on trial, at the same term of court, and found him guilty; that, the challenge for cause being overruled, the appellant was compelled to challenge the jurors who were unfriendly and to accept 6 objectionable jurors — that is, jurors who had sat in the other case mentioned. From the fact that a juror had sat in a similar case wherein the parties and the witnesses are different, who is able to declare to the satisfaction of the trial court that he is without opinion or prejudice in the present case, he is not disqualified by reason of his previous service. Bailey v. State, 56 Tex. Cr. R. 227, 120 S. W. 419; Dunn v. State, 7 Tex. App. 606; Irvine v. State, 55 Tex. Cr. R. 349, 116 S. W. 591; Holmes v. State, 52 Tex Cr. R. 354, 106 S. W. 1160; Gruesendorf v. State (Tex. Cr. App.) 56 S. W. 624; and other cases listed by Mr. Branch in his Ann. Tex. P. C. § 558, subd. 2. And even jurors who convicted the accused upon another case based on a different transaction, and with different witnesses, have been held not legally challenged for cause. Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734; Edgar v. State, 59 Tex. Cr. R. 255, 127 S. W. 1053. While jurors might be disqualified by their having tried a similar case, the facts of the present one do not bring them within the rule. The case mentioned above, together with others cited by Mr. Branch in his Ann. Tex. P. C. § 558, subds. 9 and 10, illustrate the distinction.

Bill No. 6 reveals that the witnesses Savage and Hedgespeth, a short time before the present transaction, were at the hotel belonging to the appellant in company with women not their wives; that the hotel was raided and the women arrested and fined, and the two witnesses mentioned released. The bill complains of the failure of the court to permit the proof by the witness that he was not fined. The stenographer's notes are attached by the court, and show that objection was first made and then withdrawn to the question propounded seeking to elicit this information. There is no merit in the bill.

In bill No. 7 it is the complaint of the appellant that, after the witness Savage had testified that he gave the appellant two $1 bills, Hedgespeth took the bottle of liquor and handed it to Savage, who put it in his pocket; that $2 was the price paid for the liquor. The state, on redirect examination, asked the witness Savage this question: "In all, how much did you and Hedgespeth give Charlie Asher?" The witness replied: "Four dollars." The state had previously announced that it had elected to prosecute "for the sale of said bottle of liquor and not for any other sales." We confess our inability to discern from the recitals in the bill any vice in the ruling.

Bill No. 8 complains of the excusing of Mr. Fulwiler from the rule, upon the ground that he was the chief prosecuting witness; that he, as mayor of the city, had, previous to the trial, called a law and order mass meeting; that the witnesses Savage and Hedgespeth had been instigated by Fulwiler to buy whisky from the appellant. The bill, as qualified, discloses no certification of the facts stated in the bill other than that Mayor Fulwiler was excused from the rule because he was a practicing attorney before the Breckenridge bar and was permitted to assist in the prosecution upon the request of the district attorney. The state's witness Savage testified that, with the money furnished him by Fulwiler, he purchased from the appellant a bottle of whisky and paid the price agreed upon. Savage seems to have been in the main a witness for the state. In relaxing the rule with reference to the party named, the trial judge acted within his authority. The matter of releasing a witness from the rule is usually a matter within the discretion of the trial court. Bishop v. State, 81 Tex. Cr. R. 96, 194 S. W. 389.

We fail to discern any reason for a charge upon the subject of agency; nor do we regard the transaction as one requiring a definition of the term "sale." The court instructed the jury that, if appellant sold the whisky to Savage, a sale was made. The fact that...