Fox v. State

• Decision Date: 11 March 1908
• Citation: 109 S.W. 370
• Parties: FOX v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 370

FOX v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

On Rehearing, April 15, 1908.

Appeal from Navarro County Court; C. L. Jester, Judge.

Leo Fox was convicted of selling intoxicating liquors in violation of the local option law, and he appeals. Affirmed.

S. H. Jack and W. W. Ballew, for appellant. F. J. McCord, Asst. Atty. Gen., and Richard Mays, for the State.

RAMSEY, J.

Appellant was charged by indictment, in the county court of Navarro county, with the offense of selling intoxicating liquors therein, in violation of the local option law.

The record on appeal contains 280 pages, and raises many questions. A motion has been made by the state to strike out the statement of facts, on the ground that, this being an appeal from the county court, the act of the Twenty-Ninth Legislature (Gen. Laws 1905, p. 219, c. 112), which authorized a statement of facts to be made up by questions and answers, applies only to those courts in which there was an official stenographer, and that the law makes no provisions for an official stenographer in respect to cases tried in the county court, and, further, because the statement of facts in this case, consisting of questions and answers, having been approved after the law of the Thirtieth Legislature (Laws 1907, p. 509, c. 24) had gone into effect, which repealed the provisions of the former law authorizing a statement of facts to be so prepared, that the law, in effect, when this statement of facts was prepared, in terms prohibited a statement of facts in the form in which this one was made up. We are inclined to believe that this motion should be granted, but, in view of the disposition we have concluded to make of the case, we have concluded to consider the case as if the statement of facts was in all respects regular.

2. Complaint is made that the court erred in refusing to change the venue of the case, on application made by appellant. A sufficient answer to this motion is that, under our statute, a change of venue is not authorized in a misdemeanor case. This is well settled, and the general rule seems to be recognized by appellant's counsel, though they earnestly insist that we should depart from it. We see no occasion so to do. Code Cr. Proc. arts. 613, 614, Halsell v. State, 29 Tex. App. 22, 18 S. W. 418, and Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985.

3. Again, complaint is made that the court erred in overruling appellant's application for a continuance. There was no error in this. The indictment in the case was filed in the county court, on April 15, 1907. It appears, incidentally, but definitely, from the record that appellant was arrested on May 15, 1907. No process was sought for any witness until July 27, 1907. Appellant does say in his application that he issued subpœna to Galveston county for the witness Craig, on June 27, 1907, when he first learned he was in that county; but he does not state what diligence, if any, he used to find out his whereabouts, or that he had been in ignorance of his whereabouts, or was unable to learn same. The other witnesses resided in Navarro county. The county court met on Monday, July 1st, and appellant's case went to trial on July 2d. So that, for almost two months after his indictment and arrest, no sort of diligence was used to prepare for trial. As presented in this record, the diligence was manifestly insufficient; and the court did not err in overruling the application, and this without reference to the materiality of the testimony. In this connection, we may say it is doubtful whether, under all the facts, the testimony sought was of such a character as to have justified the court in granting a continuance.

4. Again, complaint is made that the court erred in refusing to quash the jury panel and dismiss the jurors summoned for the week. This motion was made on the ground, in substance, that this jury was summoned by jury commissioners, both of whom were members of the Law and Order League, and contributors to a fund raised by such league to prosecute this and other cases, and the jurors summoned were all Prohibitionists, and several of them were members of the Law and Order League, and were contributors to the fund, and were all prejudiced against this defendant. A sufficient answer to this motion is that there was no evidence offered in support of this motion; and we are therefore without authority to review or set aside the judgment and ruling of the trial court in holding the jury qualified, or to sustain appellant's motion. Cravey v. State, 23 Tex. App. 677, 5 S. W. 162.

5. Again, it is contended that the trial court erred in not holding and charging, in effect, that, inasmuch as the city of Corsicana is operating under a special charter granted by the Legislature, the local option laws adopted by said county had and could have no application to it. We hold that the Legislature was without power, if it attempted so to do, and further that it did not in fact attempt, in granting a special charter to the city of Corsicana, to exempt said city from the equal operation of the laws of this state, that it was prohibited under the Constitution from so doing, and that the local option law, enacted under the Constitution, by which Navarro county as a unit declared the sale of intoxicating liquors unlawful, was effective throughout the limits of said county, including the city of Corsicana. Const. art. 16, § 20, and Ex parte Elliott (Tex. Cr. App.) 91 S. W. 570.

6. Again, complaint is made that the court erred in his charge on the subject of alibi. On that question the court charged as follows: "Evidence introduced in the trial of this case suggests what is known and called, in legal phraseology, as an alibi; that is, if the offense was committed as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that at which said offense was committed (if committed), and therefore was not and could not have been the person who committed the same (if committed). Now, if the evidence raises in your mind a reasonable doubt as to the presence of the defendant in the Blue Front Saloon on the 30th day of January, 1907, at the time of the alleged sale to W. S. Clark (if any), then you will acquit defendant, and say by your verdict not guilty." The requested...