Beaty v. State
| Decision Date | 06 May 1908 |
| Citation | 110 S.W. 449 |
| Parties | BEATY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Mills County Court; L. E. Patterson, Judge.
Bruce Beaty was convicted for violating the local option law, and he appeals. Reversed and remanded.
Leonard Doughty, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
This conviction was for violating the local option law.
Forehand, testifying for the state, says he bought from appellant in a local option territory what he thought to be a bottle of whisky; and it is made reasonably to appear that he believed and thought he was buying whisky at the time he made the purchase. On cross-examination his knowledge in respect to whisky and what it was, etc., was sought to be tested. The prosecution asked the witness if he knew whisky when he drank it. The witness stated he reckoned he did. Objection was urged to this on the ground that it was immaterial and irrelevant, and but a mere supposition on his part, and an opinion, and not a statement of fact. This bill is asked to be taken into consideration with the subsequent bill, which shows practically as follows: The state having examined the witness and had him swear as to the alleged sale, and as to the liquor being in his opinion whisky, and having made out the state's case as to such sale to the satisfaction of the state's counsel, the witness was turned over for cross-examination to appellant's counsel, whereupon he was asked if he would swear that the liquor which he purchased from defendant, to which purchase he had sworn, was beyond a reasonable doubt whisky, and not some concoction made to resemble it. State's counsel objected to the question on the ground that it had already been asked and answered, whereas such question had not been asked or answered, but which objection the court sustained, and refused to allow the witness to answer such question on the ground that it had been asked and answered. The witness would have answered, if permitted to do so, that he would not swear that the liquor which he testified to having purchased from appellant was whisky, and not some concoction made to resemble it. The witness having failed to testify that such liquor was intoxicating, and having failed to qualify as an expert as to what was whisky, the defendant propounded other questions to said witness as testing his qualifications as an expert as to knowledge of what was whisky, and again asked said witness whether, after such questions, he would swear that the liquor he purchased from appellant, and upon the sale of which this prosecution is based, was in fact whisky, and not some concoction made to resemble it. Again state's counsel interposed objection on the ground that the question had been previously asked, which the bill recites was not true; but the court sustained the objection. The witness would have answered, if permitted to do so, that he would not swear that said liquor which he purchased from appellant, and upon the sale of which this prosecution is based, was in fact whisky, and not some concoction made to resemble it. Exception was reserved by appellant because the question had not been asked or answered, and because it was a legal question, and was material and relevant to the defense, and because the answer of the witness would show that the liquor the witness purchased, and for which appellant is indicted for selling, was not, so far as the witness could swear, whisky, and not some concoction made to resemble it; the witness having failed to swear that such liquor was intoxicating, and having merely sworn that in his opinion the same was whisky, and having failed to qualify as an expert as to whether the same was whisky or not, and because the said question was not objected to as illegal for any reason, but only that same had been previously asked and answered, which was not true. The witness was not permitted to answer these questions, and a bill of exceptions was reserved and signed by the court. We are of opinion that while the witness may testify as to his knowledge that the liquor bought was whisky, or that the liquor bought was intoxicating, yet the evidence must show that it was either whisky, which is judicially known to be intoxicating, or, if not whisky, that the liquor or concoction bought was capable of producing intoxication. It is only a violation of the local option law to sell intoxicants. We are of opinion that this was a material question in this case, and, as this witness had not been permitted to testify in regard to this matter, the ruling of the court was error. If the liquid sold was not intoxicating, or if there was a doubt of it, then the state's case would fail. In...
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