Darnaby v. State

• Decision Date: 30 November 1927
• Docket Number: (No. 11092.)
• Citation: 1 S.W.2d 615
• Parties: DARNABY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 615

1 S.W.2d 615

DARNABY v. STATE.

(No. 11092.)

Court of Criminal Appeals of Texas.

November 30, 1927.

Rehearing Denied January 11, 1928.

Appeal from District Court, Clay County; Vincent Stine, Judge.

Sam Darnaby was convicted of possessing equipment for manufacture of intoxicating liquor, and he appeals. Affirmed.

Parker & Parker, of Fort Worth, for appellant.

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

LATTIMORE, J.

Conviction for possessing equipment for the manufacture of intoxicating liquor; punishment, one year in the penitentiary.

This record contains two bills of exception. The first shows that appellant asked the entire jury panel if they had such prejudice against liquor or a man who would take a drink of liquor as would prejudice them against a man who was on trial for a violation of the liquor law. The state's objection to this was sustained. In the qualification to this bill the learned trial judge states that the panel had already been asked if they had any prejudice in a liquor case, and all had answered that they had none. Further in the qualification it is stated that there was no evidence from any witness on the trial that appellant or any one else ever took a drink of liquor. It is also further stated in said qualification that the court understood counsel for the state was only objecting to that part of the above question which sought information upon the point as to whether the jury had such prejudice against a man who would take a drink of liquor as might prejudice them against a man on trial for a violation of the liquor law, which part of said question the court deemed immaterial. The trial judge further certifies in this connection that he would have permitted counsel for appellant to ask members of the panel any question as to their having prejudice against liquor or against violations of the liquor laws.

We have held that the examination of jurors upon their voir dire is largely within the discretion of the trial judge. Merkel v. State, 75 Tex. Cr. R. 551, 171 S. W. 740; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 345. We have much doubt as to the propriety of the question asked in its form as presented and would resolve that doubt in favor of the correctness of the trial court's action. Kincaid v. State, 103 Tex. Cr. R. 485, 281 S. W. 855. Nor do we see, in view of the fact that there was no testimony introduced showing that appellant or any one else took a drink of liquor, just how refusal to permit said question could have resulted in any harm to appellant. We might further observe that the fact that the jury gave to appellant the lowest penalty in a case in which the testimony is reasonably plain would seem to negative any proposition of prejudice.

The remaining bill of exceptions sets out in question and answer form (so ordered by the trial court) a lengthy cross-examination of appellant's wife, which he contends was violative of the rule forbidding the use of the wife's testimony against her husband. She was introduced by appellant in his behalf and testified on direct examination to a substantial alibi for him, stating that they lived at Nocona, and that on the night preceding his arrest, and every night previous to that time he was at home, and that every day he was at work in the oil field, but had been laid off for cement testing on the day of his arrest. This testimony had special materiality in a case like this. Appellant and his brother were found near a still which was in operation. The posse approaching the still saw a man named Rogers riding rapidly to where the still was afterward found. As the officers approached, this party was talking with appellant and his brother, who were a few yards distant from the still. As the officers came nearer this man got on his horse and moved away rapidly. The still was hot, and the fire under it appeared to have just been put out, apparently with water. There were 26 barrels of mash, a tent, bedding, and clothes at the still. In a coat or other garment in the tent was found a letter addressed to appellant, the contents of which formed the basis for the cross-examination here complained of. Appellant denied any knowledge of or connection with the still, but said that he and his brother had gone from Nocona that morning to Wichita Falls with a friend and that the friend started from Wichita Falls to Petrolia, and on the way appellant and his brother alighted from the car at a creek, and were going down the creek hunting when they were approached by a man who told them that hunting was forbidden in the pasture in which they were, and while they were talking to this man officers approached and arrested appellant and his brother. Appellant denied that he and his brother gave their names to the officers as Jones. He said that he did not know there was a still anywhere in the vicinity. While appellant's wife was being cross-examined she was asked relative to certain...