Green v. State

• Decision Date: 25 April 1923
• Docket Number: (No. 7685.)
• Citation: 252 S.W. 499
• Parties: GREEN v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 499

GREEN v. STATE.

(No. 7685.)

Court of Criminal Appeals of Texas.

April 25, 1923.

On State's Motion for Rehearing, June 20, 1923.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

Isom Green was convicted of selling intoxicating liquor, and appeals. Reversed and remanded.

John Doyle, of McKinney, for appellant.

A. M. Wolford, of McKinney, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Collin county of the offense of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary. We consider but the single question of the alleged error in refusing a new trial.

The conviction rested upon the testimony of Jim Williams, who said he bought four pints of liquor from appellant on the date relied on by the state, paying him $1.50 for each pint. In addition to the testimony of this witness, the state offered as part of its rebuttal the testimony of the constable of the precinct in which appellant lived who said that on the morning after the date of the alleged sale he searched the house of appellant and found about a tablespoonful of whisky in a bottle between the kitchen and the smokehouse, and in the smokehouse found a copper pot or boiler, such as constitutes part of a still, and found about a fourth of a barrel of mash. This was the state's case.

In support of his motion for new trial appellant attached an affidavit that State Witness Williams had retracted, and stated that his testimony as given on the trial was untrue. The learned trial court heard evidence in support of this motion, and on said hearing Jim Williams appeared and swore that his testimony as given on the trial was false, and that he in fact did not buy any liquor from appellant, as testified to by him upon the trial. The motion for new trial was overruled. As stated, the only error claimed and here discussed is the refusal of said new trial.

In support of the contention that the new trial should have been granted, appellant cites Mann v. State, 44 Tex. 642; Hill v. State, 55 Tex. Cr. R. 435, 117 S. W. 134, 21 L. R. A. (N. S.) 878; Heskew v. State, 14 Tex. App. 606. The state contends that these are not soundly in point, and cites Estrada v. State, 29 Tex. App. 169, 15 S. W. 645; McMahan v. State, 29 Tex. App. 348, 16 S. W. 171; Brown v. State, 42 Tex. Cr. App. 176, 58 S. W. 131; Carter v. State, 75 Tex. Cr. R. 110, 170 S. W. 740; Atkinson v. State (Tex. Cr. App.) 247 S. W. 286.

We are of opinion that the conviction should not stand. We do not care to lengthen the opinion by a discussion of the cases mentioned, but believe them to announce the rule that, when the state is compelled to rely for its conviction upon the testimony of a witness who afterward, and before the motion for new trial is acted upon, retracts the truth of said testimony and himself appears before the court and under oath affirms that the testimony as given by him originally was not true, and when the facts show that without such testimony the state has no case, the conviction should be set aside. In McConnell v. State, 82 Tex. Cr. R. 634, 200 S. W. 842, this court held that, it being satisfactorily shown that the...