Elliott v. State, 14031.

• Decision Date: 04 March 1931
• Docket Number: No. 14031.,14031.
• Citation: 36 S.W.2d 513
• Parties: ELLIOTT v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W.2d 513

ELLIOTT v. STATE.

No. 14031.

Court of Criminal Appeals of Texas.

March 4, 1931.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Dock Elliott was convicted of the unlawful sale of intoxicating liquor, and he appeals.

Reversed, and cause remanded.

Baker & Baker, of Coleman, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty, confinement in the penitentiary for one year.

Brand, the alleged purchaser, testified that on a certain day he purchased a pint of whisky from the appellant, who conducted a tourist camp.

Testifying in his own behalf, the appellant denied the sale. He stated, however, that he was visited by Brand, who claimed that, due to the sickness of his wife, he was greatly in need of whisky, and was informed by the appellant that he had none. Tomlin, who was present, proposed to give Brand a pint of whisky and handed the bottle of whisky to the appellant, who handed it to Brand. This version of the transaction was verified by the testimony of Tomlin and his wife. That the general reputation of Brand for truth and veracity was bad was declared by a number of witnesses. That his reputation in that respect was good was vouched for by several other witnesses.

When the jury panel was called into court and sworn to answer questions, the appellant demanded that the jurors be brought into the courtroom individually to the end that each might be examined in the absence of the others. In refusing to grant this request we think no error was committed. The control of the matter was one within the discretion of the trial judge save in exceptional cases. See Pena v. State (Tex. Cr. App.) 29 S.W.(2d) 785.

After the jurors were assembled and sworn to answer questions, the appellant sought the privilege of propounding to each individual juror the inquiry as to whether he was in favor of the law of presumption of innocence. The request was properly refused. See Rushing v. State (Tex. Cr. App.) 36 S.W.(2d) 159. The court gave instructions to the jury that they were bound to give effect to the law of presumption of innocence and reasonable doubt, and that they would be so instructed in the charge of the court. In beginning his examination of the jurors for the purpose of determining whether to challenge them, the appellant asked the first juror whether he was prejudiced against any man charged with the violation of the liquor law. Before the juror could answer, the court interposed, stating to the appellant that he might propound that to the jury as a general question but that he would not be permitted to propound it to the jurors individually. Under the facts of the case, the question is deemed a pertinent one, in reply to which the accused was entitled to have the answer of each individual juror. The action of the court was an undue restriction of the appellant's right to inform himself of the...