Banks v. State

• Decision Date: 17 May 1916
• Docket Number: (No. 4078.)
• Citation: 186 S.W. 840
• Parties: BANKS v. STATE.
• Court: Texas Court of Criminal Appeals

186 S.W. 840

BANKS v. STATE.

(No. 4078.)

Court of Criminal Appeals of Texas.

May 17, 1916.

Rehearing Denied June 14, 1916.

Appeal from Nacogdoches County Court; J. F. Perritte. Judge.

Henry Banks was convicted of selling intoxicating liquors in prohibition territory, and he appeals. Affirmed.

S. M. Adams, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at a fine of $25 and 20 days' confinement in the county jail.

The trial was had and judgment entered on January 19th. No motion for a new trial was filed until January 24th — 5 days after judgment was entered. No leave or permission of the court was granted to file this motion — the 2 days fixed by statute having passed. On February 3d — 14 days after the trial of the case — without getting the permission of the court, appellant filed with the clerk an amended motion. When the court's attention was called to this amended motion, he struck it from the record and refused to consider it. Virtually the sole question before us is: Did the trial court err in refusing to permit appellant to file this amended motion 14 days after the trial of the case? Attached to this motion is a certified copy of a judgment of the United States District Court, sitting at Tyler, showing that Wallace Jones, one of the state's witnesses, had on May 11, 1911, been convicted of carrying on the business of a retail liquor dealer, without having paid the special tax levied by the federal government. Appellant alleges that at the time of the trial of his case he did not know that Wallace Jones, state's witness, had been convicted in the federal court of this offense, and did not learn of it until he employed Mr. S. M. Adams to assist his counsel in filing this amended motion for a new trial and prosecuting this appeal; that as soon as Mr. Adams was employed, he sent and got a copy of the judgment, and as this judgment rendered Wallace Jones incompetent as a witness, the court should have permitted him to file his amended motion on February 24th and granted him a new trial.

This necessarily brings in review article 839 of the Code of Criminal Procedure. It provides that:

"A new trial must be applied for within two days after the conviction; but, for good cause shown, the court, in cases of felony, may allow the application to be made at any time before adjournment of the term at...