Hillman v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Morrow
• Citation: Hillman v. State, 281 S.W. 874, 103 Tex.Cr.R. 603 (Tex. Crim. App. 1926)
• Decision Date: 03 March 1926
• Docket Number: (No. 9580.)
• Parties: HILLMAN v. STATE.

Page 874

281 S.W. 874

HILLMAN v. STATE.

(No. 9580.)

Court of Criminal Appeals of Texas.

March 3, 1926.

Rehearing Denied April 7, 1926.

Appeal from District Court, Williamson County; Cooper Sansom, Judge.

L. H. Hillman was convicted of unlawfully transporting intoxicating liquor, and he appeals. Reversed and remanded.

H. Z. Daril, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant purchased from one Charles Jirasek a half gallon of whisky, and carried it in his automobile to his home in Taylor. While on the way, his car became fastened in a mudhole, and two persons assisted him in extricating it. He gave them each a drink of whisky, and drank some of it himself. He claimed in his testimony that his wife was in ill health, affected with heart disease; that because of this ailment it was necessary that she use whisky; that he had been obtaining it upon prescription, but found the he could obtain it from Jirasek much cheaper, and for that reason he made the purchase.

On the trial of the case, the state used in evidence against the appellant a written statement which he had made and signed before the grand jury. It was related in the statement that appellant had purchased a jar of whisky from Jirasek for which he paid him $7; that the transaction was had in Williamson county; that it was good moonshine whisky; that he drank part of it. He testified that the written statement, made while he was before the grand jury, was not written by him and did not contain all that he said. He offered to prove that, in his examination before the grand jury, he testified to many things in addition to those that were embraced in the written statement, that he testified that he purchased the whisky for use as medicine for his wife and for himself, and that it was used for medicinal purposes. On the hearing of his motion for new trial, he offered to prove that he was before the grand jury twice; that at first he declined to reveal the name of the person from whom he purchased the whisky, but afterwards related the entire transaction, namely, the name of the purchaser, the place of the purchase, his own actions with reference to taking it to his home, and the purpose for which he took it. The court refused to receive this testimony.

In qualifying the bills, we understand the judge to justify his refusal to permit the appellant to testify to all that was said upon the subject while he was before the grand jury at the time the written statement was made, upon the ground that, at the time the testimony was proffered, the appellant had closed his testimony, and had been called to the witness stand with the permission of the court, but for the purpose alone of giving testimony to the effect that he had purchased the whisky for medicinal use. In article 718, Vernon's Tex. Crim. Stat. vol. 2, it is said:

"The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice."

In the present case, it occurs to us that the due administration of justice required that the appellant be permitted to disclose his entire testimony concerning the matter before the grand jury. All that he said on the subject at the time was obviously admissible under article 811, C. C. P., wherein it is said that, "when a detailed act, declaration, conversation or writing is given in evidence * * * by one party, the whole on the same subject may be inquired into by the other," and any act, declaration, or conversation necessary to make fully understood or to explain what is given in evidence by the adversary is admissible. In the application of article 718, which is quoted above, the court has broad discretion which will not ordinarily be reviewed, but the testimony which the appellant sought to...