Hardgraves v. State

• Decision Date: 22 February 1911
• Citation: 135 S.W. 132
• Parties: HARDGRAVES v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W. 132

HARDGRAVES v. STATE.

Court of Criminal Appeals of Texas.

February 22, 1911.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

John Hardgraves was convicted of unlawfully selling intoxicating liquors, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted for unlawfully selling intoxicating liquors to Lee Dearton, on July 20, 1910, was convicted, and his penalty fixed at one year's confinement in the penitentiary.

The Assistant Attorney General has filed a motion to strike out the purported statement of facts, because it is not in manner and form as provided by law. The record shows that there is copied in the transcript of the record what is stated to be a statement of facts. It is clearly a copy, and not the original, if it is a statement of the facts. It has repeatedly been decided by the Supreme Court that such papers copied in the transcript, purporting to be a statement of the facts, are unauthorized and are struck out upon motion for that purpose. This court has pointedly so held heretofore. See Misso v. State, 135 S. W. 1173, and Slatter v. State, 136 S. W. ___, decided February 15, 1910. See, also, Frenzell v. Lexington Land & Abstract Co. (Tex. Civ. App.) 126 S. W. 907, and Vickrey v. Burks (Tex. Civ. App.) 121 S. W. 177. The motion of the Assistant Attorney General is therefore granted, and the said purported statement of facts struck out.

The indictment is regular, drawn in accordance with the approved forms; the charge of the court submits the whole question to the jury in accordance with the allegations of the indictment, and would justify the jury, as it did, in finding the appellant guilty. The judgment of the court based on the verdict of the jury adjudges appellant guilty, and he is properly sentenced.

But there are three bills of exception necessary to be considered. The first is where the judge refused to give the following charge to the jury, requested by the appellant: "You are instructed not to consider county attorney's argument (B. F. Gafford), as follows: `Cliff and John couldn't remember where he was on the 20th day of July; at least, they have offered no testimony.'" The judge refused this, stating, "The court did not understand from argument of county attorney that he was making any reference to defendant's failure to testify." From this we conclude that what was quoted above in the requested charge, county attorney's argument, had no reference to the appellant's failure, if he did, to testify. This charge, and no other fact shown by the record, shows that the appellant did not testify; neither is there anything in the record by which we can determine who Cliff and John are. Hence there is no error shown by the refusal to give this charge.

The other two bills of exception will be discussed together, as they present the same question. The first is as follows: "When one of the state's witnesses, George Ricketts, was on the stand (he not being the party to whom the defendant herein is charged to have sold intoxicating liquor), said witness was asked by the state (after witness had testified that defendant sold to Lee Dearton, prosecuting witness, intoxicating liquor) if, at the same time, defendant sold to witness intoxicating liquor. To which question and answer, defendant then and there objected, because the same was an independent and separate transaction; did not show any scheme, intent, or system; prejudicial to the rights of the defendant; and because the defendant had already been in said transaction detailed by the witness (convicted), and no new trial having been granted. Which objections were overruled by the court, and the witness permitted to testify as follows: `I got 50 cents worth of whisky from him (defendant) and Dearton got 35 cents worth. Both Dearton and I got the whisky from defendant there, at the same time and place. I saw Dearton pay defendant 35 cents. It was intoxicating liquor we got. I drank some of it.' To which ruling of the court the defendant then and there excepted."

The other bill is as follows: "When prosecuting witness, Lee Dearton, was on the stand (after he had testified to a sale by defendant of intoxicating liquor to witness), witness was asked by the state the following question: "If, at the same time, defendant sold to any one else intoxicating liquor?" To which question and answer defendant then and there objected, first, because same was an independent and separate transaction and offense; second, same did not show system,...