Gilley v. State, 13049.

• Decision Date: 19 February 1930
• Docket Number: No. 13049.,13049.
• Citation: 26 S.W.2d 1070
• Parties: GILLEY v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W.2d 1070

GILLEY v. STATE.

No. 13049.

Court of Criminal Appeals of Texas.

February 19, 1930.

On the Merits March 12, 1930.

Rehearing Denied April 16, 1930.

Commissioners' Decision.

Appeal from District Court, Stonewall County; Bruce W. Bryant, Judge.

R. N. Gilley was convicted for the unlawful sale of intoxicating liquor, and he appeals.

Affirmed.

Warren W. Moore and Edwin Moorhead, both of Austin, for appellant.

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

MARTIN, J.

Offense, the unlawful sale of intoxicating liquor; penalty, two years and six months in the penitentiary.

The transcript in this case contains no sentence. This is the final judgment and its presence in the transcript is necessary to confer jurisdiction on the Court of Criminal Appeals in a felony case. In its absence the appeal must be dismissed. Thompkins v. State, 87 Tex. Cr. R. 502, 222 S. W. 1103, 224 S. W. 687; Vernon's C. C. P. art. 769, note 3.

Appeal dismissed.

On the Merits.

The transcript has been amended to show proper sentence. The appeal is therefore reinstated and will be considered on its merits.

On Christmas night, 1927, the testimony shows that four boys, one of them a high school boy sixteen years old, drove up to appellant's filling station and there purchased from him two pint beer bottles full of whisky, for which they paid him five dollars.

The substance of a proposition asserted in appellant's brief is that where appellant, being too poor to employ one, asks for and is refused counsel by the court, and the record shows the reception of improper testimony which probably contributed to the conviction of appellant, the case should be reversed. The law does not place upon the trial court the duty of appointing counsel for the accused on trial except in the case of a capital felony. Article 494, C. C. P. The record here shows that practically all the improper testimony which it is now claimed caused the conviction in this case was brought out by the appellant himself, who it appears acted as his own attorney. Appellant's entire proposition is based upon the hypothesis that a lawyer appointed by the court would not have fallen into this same error, which is by no means necessarily true, as the records of this court abundantly demonstrate. If we agree to the correctness of appellant's contention, What then could we say in a case where it was contended that while appellant had a lawyer, he was in fact too poor to hire one with ability enough to know how to make the proper objections and keep out such testimony, and his poverty had therefore lost him his liberty? There seems as much logic in one as the other of these propositions. The unsoundness of such a proposition seems manifest. Obviously, we cannot judicially...