Brantly v. State

• Decision Date: 28 November 1900
• Parties: BRANTLY v. STATE.
• Court: Texas Court of Criminal Appeals

59 S.W. 892

BRANTLY v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1900.

Appeal from Lamar county court; William Hodges, Judge.

Blake Brantly was convicted of violating the local option law, and appeals. Affirmed.

Hill & Moore, for appellant. Robt. A John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted for violating the local option law, and his punishment assessed at a fine of $25 and 20 days' imprisonment in the county jail. In the statement of facts appellant agrees that the order for the local option election for precinct No. 1 had been legally made; that the election thereunder was properly held; and that the commissioners' court counted the result legally, and duly declared the same, and the same was published according to law four consecutive weeks. Bill of exceptions No. 1 presents the following: Appellant had introduced six witnesses, each of whom testified that, on the night the prosecuting witness claimed he bought the intoxicating liquors from appellant, said witnesses purchased cider from appellant out of a barrel located in a particular place in appellant's confectionery store. They further testified that said cider was not intoxicating, and also to the good reputation of appellant in the neighborhood. Thereupon appellant offered to prove by William Smith the same facts. The trial court refused to admit this testimony on the ground that the matter was simply cumulative of the testimony of the six other witnesses. Appellant insisted upon the introduction of said witness, and stated his testimony would be substantially the same as the other six witnesses. The court stated, in the presence of the jury, that the testimony of this witness was uncontroverted, and was simply cumulative of what the other six had testified, and was consuming the time of the court unnecessarily. Under these circumstances we do not think the court erred in refusing to permit the witness Smith to so testify, for he would simply have testified to purely cumulative facts, which were uncontroverted. Nor do we think the remarks of the court, as indicated in the bill, that the testimony of said witness is uncontroverted, injured the rights of appellant; and, not appearing to have done so, we will not reverse on this account. Morrison v. State (Tex. Cr. App.) 40 S. W. 591; Levy v. Same (Tex. App.) 12 S. W. 596; Stayton v. Same, 32 Tex. Cr. R. 33, 22 S. W. 38.

Bill No. 2 complains of the remarks of the county attorney in his closing argument for the state, in which he stated appellant had been once tried for the offense then on trial, and the jury stood five for conviction and one for acquittal. The exact language used by the county attorney is: "Since Moore [meaning one of appellant's counsel] has gone out of the record to tell you that defendant has been tried and acquitted for the sale made on Saturday night, as testified to by witnesses, I will slip out of the record to tell you that upon a former trial of this case, after a hard-fought contest, five men who sat as jurors in the trial of this case at the time said that the defendant was guilty, and one man alone hung the jury." The court appends this explanation to the bill: "While defendant was testifying in his own behalf his counsel asked him if he had not been tried in another case for violating the local option law about the same time, in which the same witnesses testified for the state, and been acquitted. The county attorney objected to the testimony as irrelevant. The court sustained the objection, but not before defendant had replied he had been acquitted. But defendant's counsel did not understand the ruling of the court at the time. Defendant's counsel Moore, in his argument to the jury, told them that another jury had tried defendant with the same witnesses, and upon about the same state of facts as was presented, and adjudged him not guilty. In referring to this portion of Mr. Moore's argument, the county attorney used substantially the language complained of, and to which defendant excepted. The court immediately told the jury not to consider anything the county attorney might have said about a former trial of this case, or what Mr. Moore had said about the result of another case against the defendant; that both attorneys had gone out of the record, and they should not consider what either of them had said...