Dupree v. State

• Decision Date: 19 May 1909
• Citation: 120 S.W. 870
• Parties: DUPREE v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 870

DUPREE v. STATE.

Court of Criminal Appeals of Texas.

May 19, 1909.

On Rehearing, June 23, 1909.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Milt Dupree appeals from a conviction. Affirmed.

Harrison & Wayman, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Brown county on an indictment charging him with the sale of intoxicating liquors in said county in violation of the local option law.

The only question arising on this appeal of any moment is to the action of the court in refusing to grant a new trial on account of what was claimed to be the newly discovered testimony of one Gaines Scott. The record discloses the fact that at the May term, 1908, of the district court of Brown county, some 13 indictments were returned against appellant, all based on the testimony of J. C. Couch, charging him with the unlawful sale of intoxicating liquors to said Couch on different days in April, May, and June of that year. The record also shows that during this time Gaines Scott was employed by appellant, who was engaged in selling, as he claims, Uno and Ino, and who had, he admits, internal revenue license as a retail liquor dealer. Couch testified, in substance, that on the 10th day of April, 1907, he approached Scott, who was behind the bar in appellant's place of business, seeking to buy whisky from him, and that Scott declined to sell; that thereupon appellant remarked, "Let me behind the counter; I will take the risk of that." The motion sets up the fact that, from the time of the return of the indictment until a very short while before the trial, the witness Couch was not in Brown county, and that neither appellant nor his counsel had opportunity to ascertain what he would testify to, and that on the day of the trial, under the direction of the court, Couch did talk with appellant's counsel, and, though requested to state all the facts touching the particular sale involved in this transaction, did not mention the presence of Scott at the time of this sale, and that neither appellant nor his counsel had any reason to believe that the testimony of Scott would be material or important upon his trial.

We think, in view of the facts as they appear in this record, that the court did not err in refusing to grant a new trial on the ground urged, and for two reasons. In the first place, if the facts were that the testimony of this witness was so important as to have required the court to postpone the case, and if the testimony of Couch operated as such surprise as to require a postponement, application should have been made to the court immediately for a postponement or continuance of the case to enable appellant to obtain the testimony of the missing witness. The record shows, however, this was not done, but that the trial proceeded to a conclusion; the appellant taking his chance on securing a verdict of acquittal, and making no motion in respect to the absence of Scott, nor suggestion as to the effect of his testimony, until after his conviction. He must have known whether such a transaction occurred in Scott's presence. We think the proper practice should be, in every such case as is here presented, if counsel are surprised at the testimony of a witness, that timely...