Biddy v. State

• Citation: 107 S.W. 814
• Parties: BIDDY v. STATE.
• Decision Date: 29 January 1908
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 814

107 S.W. 814

BIDDY v. STATE.

Court of Criminal Appeals of Texas.

January 29, 1908.

Appeal from Wood County Court; J. O. Rouse, Judge.

Joe Biddy was convicted of violating the local option law, and he appeals. Reversed and remanded.

Mounts & Jones and W. P. Jones, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $100 and imprisonment in the county jail for 60 days.

The first witness for the state was R. C. Thomas, who testified in regard to the main transaction as follows: "I bought some whisky from him (referring to appellant) about the 9th day of February, 1907. The whisky I bought from the defendant was a bottle. I paid him 35 cents for the bottle of whisky. It was intoxicating liquor. * * * The defendant and myself walked around behind the bar, and he poured the whisky out into the bottle and gave it to me down under the bar, and I gave him 35 cents. * * * We were in between the front bar and the back bar when he sold me the whisky. I think Chris Burnett was standing in the front part of the house when I bought the whisky. The bar was in the back part of the house." He further states: "The sale occurred in the daytime, and I think Chris Burnett was present." Chris Burnett was placed on the stand by the defendant, and he stated that he was in the store where the sale should have occurred at the time and place Thomas claims to have bought the whisky from appellant, and did not see Thomas buy any whisky at said time and place, and that appellant did not sell any whisky to Thomas then. If he had, witness would have seen it. On cross-examination he states: "I did not know what the defendant did when I was not in there. He may have sold Thomas the whisky when I was not present. He could have sold him the whisky, and me not see him." The witness Britton was permitted to testify as follows: "I examined the books of the United States internal revenue collector for the Fourth district of Texas, at Dallas, Tex., on or about the 25th day of March, 1907. These books show that W. B. Roberts had United States internal revenue license to sell whisky at Elberta, Tex., or to pursue the occupation of retail liquor dealer at Elberta. I did not take down the number of his license. (Here witness examined a memorandum book which he took from his pocket.) No, sir; I failed to make a notation of his Elberta license. I remember seeing an entry on the collector's books showing a license issued to him at Elberta." Objection was urged that this was immaterial and irrelevant; that it was hearsay, and was not the proper way to prove what the books of the internal revenue collector showed; that there was better evidence of what the books of said collector showed, and it was improper to attempt to show what said books showed by this character of testimony; and that the only way said witness could testify was from an examined copy, and that this testimony showed that he did not and was not testifying from such copy. This bill is signed, with the explanation that "on Monday, April 1st, the first day of the county court, the defendant was served with a subpœna duces tecum to produce his revenue license. Same was not produced in court, and this testimony was admitted after he had failed to produce said revenue license." This explanation makes the thing worse, and does not explain away anything. Appellant, under this explanation, was served with a subpœna duces tecum to produce his license. The witness was examined about license issued to W. B. Roberts. Appellant was not served with a subpœna duces tecum to produce Roberts' license, and doubtless could not, if he had been served. The license was not supposed, legally, at least, to be in possession of appellant. It was the property of and belonged to Roberts.

We are of opinion that the objections urged are well taken. The statute (article 407a, Rev. St. 1895) enacted by the Twenty-Eighth Legislature (Acts 1903, p. 57, c. 40) provides that an examined copy of the revenue license taken out from the federal authorities may be used as evidence; but this witness was not undertaking to prove up an examined copy. In fact, there was no copy at all, and none was offered. The bill shows that he took a memorandum book from his pocket, and, after looking at it, said that he failed even to make a notation of Roberts' Elberta license; and this is the only evidence, so far as the bill is concerned, that the witness had anything in writing in regard to it, and he does not even say in his statement that this book contained an examined copy. He simply testified that he had examined the books of the internal revenue collector at Dallas, and that these books showed that Roberts had an internal revenue license to sell whisky at Elberta, or to pursue the business of a retail liquor dealer at that point, and he even failed to make a notation of that in his memorandum book. This evidence excludes the idea that an examined copy was offered, and is brought strictly, as we understand, within the rule laid down by this court in several authorities, among which will be found Goble's Case, 42 Tex. Cr. 501, 60 S. W. 968. The following is a quotation from that opinion: "Bill No. 4 complains that the court permitted G. S. Slover to testify for the state that he had been to Dallas, and had seen the internal revenue collector's books, and that said books show that defendant procured a revenue license, dated about the 6th day of December, 1899, and extending over a period of several months; that he (witness) made a memorandum of what the books showed; and that he (witness) entered it in his book. Defendant objected to said witness testifying to these facts, because he was not testifying to the correctness of an examined copy of the records of the internal revenue collector's office, but a memorandum made by the witness himself, and because neither the revenue collector, nor any one for him, is shown to have made any copy of the page of the records kept by said collector, and because it is not shown that the collector, or any one for him, has certified to the correctness of the record, and because it is not shown that the collector, or any one for him, was present when witness made the memorandum. The court explains this bill as follows: `When the witness was testifying, he held a memorandum book in his hands and looked at it, and was asked if he was testifying from memory or the book. He said he was testifying from memory.' The explanation makes the testimony doubly inadmissible. It is not permissible for a witness (except the revenue collector) to make a copy of the books and testify from the copy, and it would certainly not be permissible for witness to testify from memory or copy made by witness." That decision is wrong...