Baimonte v. State

• Decision Date: 28 October 1925
• Docket Number: (No. 8928.)
• Citation: 276 S.W. 921
• Parties: BAIMONTE v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 921

BAIMONTE v. STATE.

(No. 8928.)

Court of Criminal Appeals of Texas.

October 28, 1925.

Commissioners' Decision.

Appeal from District Court, Robertson County; W. C. Davis, Judge.

Frank Baimonte was convicted of selling liquor, and he appeals. Reversed and remanded.

Lamar Bethea and J. R. Astin, both of Bryan, Henry A. Bush, of Franklin, and E. T. Branch, of Houston, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Ass't State's Atty., both of Austin, for the State.

BERRY, J.

The appellant was convicted in the district court of Robertson county for the offense of selling liquor and his punishment assessed at confinement in the penitentiary for a term of two years.

When the case was called for trial appellant presented his second application for a continuance on account of the absence of the witness Julian Court and other witnesses. It is not necessary to discuss the application with reference to any witnesses except the witness Court. The facts show that the witness Reece Simpson testified that he bought a concoction, believed by him to be whisky, and which he bought as whisky, from a party whom he in a manner identified as the appellant. The witness testified that he was not well acquainted with the appellant and had not known him very long. The witness also testified that he had seen Peter Baimonte, a brother of this appellant, and that he did not know Frank Baimonte from Peter Baimonte until the day of the alleged sale. We quote his statement:

"I did not know Frank Baimonte from Peter Baimonte until that day, and they said it was Frank. I bought it from the one named Frank; that is what they said — what they told me. As to whether I am certain I bought it from Frank and not Peter Baimonte, I was told to go to Frank, I asked for Frank, and that is the one that come to me. I did not ask for anybody; I just held up my hand, and he come to me."

On redirect examination the witness testified that the party on trial was the person from whom he bought the whisky. The appellant on the trial of the case testified to an alibi, and proved by himself, an uncle, and a cousin living near Missouri City, and by his father and mother, that he was not in Robertson county on the day the offense is alleged to have been committed, but was visiting his relatives at Missouri City near Houston from the 17th day of July, 1923, until the 29th day of said month. In his application for a continuance, the appellant alleges that he expected to prove by the witness Julian Court that on the morning of the 17th day of July, 1923, the witness and the appellant boarded the train at Shoreacres on J. R. Astin's farm and rode to Hearne together; that the defendant told the witness, Julian Court, that he was on his way to Houston and Missouri City for a short vacation and to visit relatives; that the defendant and the witness Julian Court alighted from the train at the depot in Hearne, and he left the defendant at the depot in Hearne waiting for the south-bound Houston & Texas Central train for Houston, Tex. Scruggs v. State, 35 Tex. Cr. R. 624, 34 S. W. 951. The diligence used by the appellant to procure the attendance of this witness is entirely sufficient. In fact, there was no contest filed by the state, so far as this record shows, with reference to a lack of diligence. The testimony above detailed, given by the state and by the appellant on the trial of the case, clearly demonstrates that the absent testimony, if true, was highly material to the appellant's defense.

We are of the opinion that the court erred in refusing this application for a continuance and in refusing a new trial. The testimony of the witness Court was very material to the defendant, and, the object of it being to prove an alibi, it does not come within the objection that it is merely cumulative testimony. It has been often held by this court that the fact that the evidence is cumulative where it is sought to establish an alibi is no reason for its exclusion, but, on the contrary, the greater the number of witnesses to the facts establishing it, the stronger ordinarily would be the reliance upon and conviction of its truth. Pinckord v....