Bryant v. State

• Decision Date: 14 March 1923
• Docket Number: (No. 7478.)
• Citation: 250 S.W. 169
• Parties: BRYANT v. STATE.
• Court: Texas Court of Criminal Appeals

250 S.W. 169

BRYANT v. STATE.

(No. 7478.)

Court of Criminal Appeals of Texas.

March 14, 1923.

State's Rehearing Denied April 18, 1923.

Appeal from District Court, Milan County; John Watson, Judge.

W. C. Bryant was convicted for the unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.

Robert M. Lyles, of Groesbeck, for appellant.

A. J. Lewis, Co. Atty., of Cameron, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

Appellant's business house was searched, and in it was found a half-gallon jar which was two-thirds full of whisky. He occupied a place which had been used as a saloon. There were various bottles on the premises; also a tin can that was bent so that it might be used for pouring liquids, and it had the smell of liquor. The witness Jack House was in the building. There was found in his pocket a small medicine bottle, about two-thirds full of whisky. The witness House was put upon the witness stand by the state in making out its main case, and testified that he did not get the small bottle of whisky from the appellant but that he had previously gotten it from another person. The state's counsel then, over various objections urged by the appellant, interrogated the witness with reference to his testimony, previously given before the grand jury, and with reference to a written statement signed by the witness, in which he declared that he had received a small bottle of whisky from the appellant. The court permitted this interrogation, and also permitted the state's counsel, over appellant's objection, to prove by the witness that in the statement he did admit that he had received the whisky from the appellant and that he so testified before the grand jury. The effect of this proceeding was to establish, by the hearsay statement of the witness House, that he had bought a small bottle of whisky from the appellant. The witness denied this on the stand, but gave no such testimony adverse to the state as justified the impeachment of its own witness. The statute upon the subject reads thus:

"The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness." C. C. P. art. 815.

In its application, the decisions are uniform to the effect that the mere failure to prove a given fact by a witness will not authorize his impeachment by the party offering it. See Vernon's Tex. Crim. Stat. vol. 2, p. 763, and cases cited; also Ice v. State, 84 Tex. Cr. R. 509, 208 S. W. 343; Hays v. State, 84 Tex. Cr. R. 349, 206...