Gorman v. State

• Decision Date: 30 October 1907
• Citation: 105 S.W. 200
• Parties: GORMAN v. STATE.
• Court: Texas Court of Criminal Appeals

105 S.W. 200

GORMAN v. STATE.

Court of Criminal Appeals of Texas.

October 30, 1907.

Appeal from Upshur County Court; Albert Maberry, Judge.

Clyde Gorman was convicted of running a "blind tiger," and he appeals. Reversed and remanded.

J. P. Hart and M. B. Briggs, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charges appellant with running a "blind tiger" in a local option district.

In submitting the case to the jury, the court authorized them to convict for running a "blind tiger," and, if not, to convict for an ordinary violation of the local option law. This was, in our judgment, error, but appellant was convicted of running a "blind tiger." It is not of sufficient importance to notice this further than to say we do not believe that under an indictment charging the running of a "blind tiger" a party could be convicted of an ordinary violation of the local option law; and this issue should not be submitted.

While the witness Haynes was testifying in behalf of the state, counsel for prosecution asked the following questions, and received answers as set out below: "Q. Have you ever had any conversation with Mr. Gorman as to how to get whisky. A. No. Q. Did he ever tell you where to put your money to get whisky? A. No., sir. Q. How did you know how to get it, then? A. I heard people talking around Big Sandy. I heard people say any one could get whisky around there in these places. Q. Who did you hear talking? A. I don't remember, but I have heard crowds around Big Sandy say so, and I heard them say that the defendant was not doing anything but selling whisky around there." Objection was urged to the introduction of this testimony as hearsay; that it did not throw any light on the issues as to whether the defendant made the sale to said Haynes, and it was a matter of putting in issue the character of the defendant, and because it was immaterial, irrelevant, and did not show or establish a sale to said witness or tend to show a system of business. We think this testimony was illegitimate. It was clearly hearsay.

Another bill recites the fact that the state introduced Williams, agent of Cotton Belt Railway Company at Big Sandy, who testifies as follows: "We have received for W. C. Gorman freight over the Cotton Belt Railway Company, prior to June 3, 1906, as follows: [State here introduced four slips marked, "Copy."] Freight receipts. (1) 2/12/1906, two barrels of whisky; (2) 4/18/1906, one barrel of whisky; (3) 4/10/1906, three barrels of whisky; (4) 1/30/1906, one crate glass and one crate lamps." Exception was reserved to the introduction of these slips showing various shipments of goods to defendant. And the following bill recites that the same witness testified to receiving for W. C. Gorman freight prior to ...