Atkinson v. State, (No. 7358.)

• Decision Date: 24 January 1923
• Docket Number: (No. 7358.)
• Citation: 247 S.W. 286
• Parties: ATKINSON v. STATE.
• Court: Texas Court of Criminal Appeals

247 S.W. 286

ATKINSON v. STATE.

(No. 7358.)

Court of Criminal Appeals of Texas.

January 24, 1923.

Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.

J. D. Atkinson was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

Sid Crumpton, of Texarkana, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was charged with selling intoxicating liquor to one Albert Tucker. Upon conviction, his punishment was assessed at confinement in the penitentiary for two years.

Upon the trial, appellant was not represented by counsel, and the record is before us without bills of exception or objections of any kind to the charge of the court, or to any other proceeding in the trial of the case. After conviction, appellant secured the services of an attorney. It is made to appear in the motion for a new trial that appellant had been negotiating with Mr. Sid Crumpton looking to his employment, and that on Monday preceding the trial on Thursday a fee had been agreed upon, and if appellant was able to raise the money he was to notify said attorney, who lived at Texarkana, some 22 miles distant from the county seat of Bowie county. Appellant did not notify the attorney, claiming in his motion for new trial that he was relying upon his presence at the court on Thursday, at which time he thought he would be in a condition to secure his services. When the case was called for trial on Thursday, appellant telephoned Mr. Crumpton, who advised appellant that it would be impossible for him to reach the courthouse before 1 o'clock. Crumpton then called the district attorney, requesting him to ask the court to postpone the case until that hour. This request was presented but refused by the court, and appellant placed upon trial. It is further made to appear by the affidavit of the district attorney that the jury panel was exhausted, making it necessary to summon other jurors, whereupon he notified appellant at that time that it would be 1 o'clock before the jury panel could be completed and he would still have time to get Mr. Crumpton there, at which time he says appellant replied that it was only a matter of his word against Tucker's, and that he thought he would not need an attorney. It is further made to appear that the case had been originally set for Monday with other cases, but that for some reason not disclosed by the record the court had recessed until Thursday. What order, if any, was made in the instant case upon Monday does not appear in the record. Process for several witnesses had been issued at the instance of appellant and had been served, and the witnesses were present on the Monday in question. Whether they were notified to report on Thursday, the record does not show.

Attached to the motion for new trial are copies of three indictments against the prosecuting witness, Albert Tucker, in which he is charged with having on three separate occasions sold intoxicating liquor to one R. W. Childress. These indictments were returned on the 8th day of December, 1921. After Tucker had remained in jail about two months he went before the grand jury, and upon his testimony the indictment against appellant was returned on ...