Bogan v. State

• Citation: 22 S.W.2d 944
• Decision Date: 24 April 1929
• Docket Number: (No. 12511.)
• Parties: BOGAN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

22 S.W.2d 944

BOGAN v. STATE.

(No. 12511.)

Court of Criminal Appeals of Texas.

April 24, 1929.

Rehearing Denied January 8, 1930.

Appeal from District Court, Hunt County; Grover Sellers, Judge.

Jess Bogan was convicted of possessing intoxicating liquor for purposes of sale, and he appeals. Affirmed.

L. D. Hartwell, T. W. Thompson, and Ben F. Lowrie, all of Greenville, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment one year in the penitentiary.

Two schoolboys testified for the state. Appellant introduced no testimony combating or contradicting that given by these two boys. The indictment charged possession for the purpose of sale of "certain liquor capable of producing intoxication." This allegation was sufficiently descriptive of the liquor in question. The motion to quash was properly overruled. Frickle v. State, 39 Tex. Cr. R. 254, 45 S. W. 810; Piper v. State, 53 Tex. Cr. R. 485, 110 S. W. 898; Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090; Taylor v. State, 105 Tex. Cr. R. 465, 288 S. W. 1080. The Tucker Case, supra, decided adversely to appellant the identical question here raised. It has been uniformly followed in many cases by this court.

There was no error in letting the witnesses swear that they bought from appellant home brew. It was shown without dispute that said home brew was intoxicating liquor. This testimony raised no question of variance.

One of the boys to whom appellant sold intoxicating liquor, testified that when he got the liquor from appellant he took same to a vacant building and left it; that later he and two other boys went to the building, got the liquor, and drank it. On cross-examination, this witness admitted that when before the grand jury he first told them he "didn't buy it but found it." He said he liked appellant, who had been to see him and asked him not to tell about buying from him. He further testified that, about twenty minutes after he had given the testimony above referred to, he went back before the grand jury and told them he got the liquor from appellant. Appellant excepted to the court's charge for its failure to tell the jury that this witness was an accomplice, and a special charge to this effect was refused. The matter is not free from difficulty. It will be noted that this conviction was for the possession of intoxicating liquor. Nothing in the record sheds light on what was the testimony of said witness before the grand jury save his own admission that he told an untruth before them in reference to buying the liquor from appellant. He further says that in twenty minutes after he had made this false statement he went back to correct same and told the truth. The authorities hold that one who gives false testimony to enable a criminal to escape arrest or trial is an accessory, and, if a witness, upon the trial of such person for the offense, escape from trial for which the false testimony was given, such witness would be in law an accomplice. Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912; Howard v. State, 92 Tex. Cr. R. 231, 242 S. W. 739; Mollie Turner v. State (Tex. Cr. App. No. 12295) 16 S.W.(2d) 127, opinion March 13, 1929.

However, in this case we do not think it becomes necessary to decide the question to which we have just reverted. The other schoolboy testified fully to facts, which show without contradiction that appellant possessed the liquor in question for the purpose of sale. A charge to the jury that the first witness was an accomplice and that a conviction could not be had on his testimony, unless true and corroborated, etc., if proper, could not have affected the result of the trial. The refusal of such charge would be deemed entirely referable to the class of cases comprehended by article 666, C. C. P., which forbids reversal of cases for errors or omissions in the charge unless same appear from the record to be of a nature calculated to injure the rights of the accused. In Fisher v. State, 81 Tex. Cr. R. 571, 197 S. W. 189, Judge Morrow says that the testimony of the witness who was claimed to be an accomplice was but cumulative of other testimony showing the accused a dealer in intoxicating liquor, and, under the article of the statute last mentioned, reversal would not be authorized for refusal to tell the jury that such witness was an accomplice. In Chandler v. State, 89 Tex. Cr. R. 310, 230 S. W. 1002, 1003, reversed for refusal to charge that state witness was an accomplice, the same learned judge in the opinion is careful to say: "His testimony being essential to sustain the state's case, the error * * * requires a reversal." See, also, Chandler v. State, 89 Tex. Cr. R. 311, 230 S. W. 1001, 1003; Wilkerson v. State, 93 Tex. Cr. R. 50, 245 S. W. 430; Bailey v. State, 68 Tex. Cr. R. 119, 150 S. W. 915; Bailey v. State, 69 Tex. Cr. R. 474, 155 S. W. 536. Carl White was with Kelly and testified that appellant sold Kelly certain bottles of intoxicating liquor, and that Kelly was sober before he drank the liquor, and after drinking same he became drunk. This witness testified also to the effect upon himself of that part of the liquor which he drank. White was not an accomplice. Kelly's testimony would but have been cumulative of that of White. The refusal of the charge could not have been harmful to appellant, who was given the lowest penalty by the jury. Even if the charge on accomplice testimony should have been given, we do not believe the case should be reversed for this error.

Finding no reversible error in the case, the judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

But two...