Barnes v. State

• Decision Date: 27 May 1925
• Docket Number: (No. 8864.)
• Citation: 277 S.W. 647
• Parties: BARNES v. STATE.
• Court: Texas Court of Criminal Appeals

277 S.W. 647

BARNES v. STATE.

(No. 8864.)

Court of Criminal Appeals of Texas.

May 27, 1925.

Rehearing Denied December 2, 1925.

Commissioners' Decision.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Cleve Barnes was convicted of possessing intoxicating liquors for the purpose of sale, and he appeals. Affirmed.

B. D. Shropshire, of Weatherford, and Burkett, Orr & McCarty, of Eastland, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BERRY, J.

Appellant was convicted in the district court of Eastland county for the offense of possessing intoxicating liquor for the purpose of sale, and his punishment assessed at confinement in the penitentiary for a term of two years.

Bill of exception No. 1 complains of the action of the court in overruling appellant's motion to quash the jury panel. This matter was settled adversely to the appellant's contention in the case of Hart v. State, 276 S. W. 233, this day decided; also see McNeal v. State, 274 S. W. 981, decided by this court on May 20, 1925.

Bill of exception No. 2, with reference to a motion to continue on account of appellant's leading counsel being unable to try the case, is insufficient to show any error. The only suggestion in the motion is that counsel was at the time confined with influenza and not able to attend court, and that he had heretofore tried the case twice and was more familiar with the case than either of the other attorneys. No injury is shown in the court's action in overruling the motion to continue.

By bill No. 3 appellant complains of the court's action in allowing the state to introduce a part of the testimony of appellant, given in the trial of Harry Atwood, at a former time, wherein he claimed to own the garage independently, and that he had the work done on the garage. From the record in the case we observe that this is the same garage where whisky was found by the officers. This testimony was clearly admissible. It was a statement made by the appellant when not under arrest, and there is nothing in the bill to show that it was not properly introduced in evidence.

There was no error in the court's action in refusing to give appellant's special charge shown in bill of exception No. 5. This charge asked the court to instruct the jury to not consider the remarks of the county attorney, who, on behalf of the state, said:

"I believe I know conditions in Eastland county, and, considering the circumstances and conditions prevailing in this county, I believe the state has made out as strong a case as I have ever seen made out."

This was nothing more nor less than the deduction that the county attorney was attempting to draw from the evidence in the case, and, considering the facts in connection with the special charge offered, we are not disposed to say that it could have injured the appellant in any way. We also observe that the record fails to show that any bill of exceptions was taken to the argument thus made at the time it was made, and in the absence of a bill of exceptions approved by the court showing that the argument was really made, we are not in a position to know that the facts in the case called for any such charge. And the same observations apply to the special charge embodied in defendant's bill of exception No. 6. This bill was to the refusal of the court to give a special charge asking the jury not to consider certain statements of the county attorney in his...