Jackson v. State

• Decision Date: 28 October 1925
• Docket Number: (No. 9268.)
• Citation: 280 S.W. 836
• Parties: JACKSON v. STATE.
• Court: Texas Court of Criminal Appeals

280 S.W. 836

JACKSON v. STATE.

(No. 9268.)

Court of Criminal Appeals of Texas.

October 28, 1925.

Rehearing Denied March 3, 1926.

Commissioners' Decision.

Appeal from District Court, Gregg County; P. O. Beard, Judge.

Artie Jackson, Sr., was convicted of possessing intoxicating liquor, and he appeals. Affirmed.

H. T. Lyttleton, of Marshall, for appellant.

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

BERRY, J.

The appellant was convicted in the district court of Gregg county for the offense of possessing liquor, and his punishment assessed at confinement in the penitentiary for a term of two years.

The state's testimony shows that the appellant and a negro were found in a room at a camp which is described as the appellant's camp, and that in said room was found whisky in bottles and in a glass jar, and that there was some whisky on the floor when the officers raided the place. It is also in evidence that when the officers raided it a jug containing whisky was turned over and the whisky allowed to run out of it. The officers testified that they recovered about three pints of whisky at the place. The appellant defended on the theory that such whisky as was found there had been bought by him and his associates, who were there fishing, from a negro whose name they claimed they did not know.

The appellant in his first bill of exception complains at the court's action in overruling his first application for a continuance. We think the diligence used to procure the absent witnesses was entirely insufficient. The application shows that a subpœna was asked for by appellant for said witness on the 10th day of October, 1924, and returned into court on the 14th day of October not served as to the witness Newville on account of said witness being out of the state. The record shows that the appellant was indicted in Harrison county on the 18th day of July, 1924, and that his case was transferred from the district court of Harrison county to the district court of Gregg county on the 5th day of September, 1924. It further shows that the district court of Gregg county met on the 6th day of October, 1924. Under this condition of the record, we think appellant was wholly lacking in diligence in failing to have a subpœna issued for the witness Newville until the 10th day of October, 1924. There is nothing in the motion showing, or tending to show, that if appellant had used sufficient diligence to have the witness subpœnaed he would have been temporarily out of the state at the time of this trial. From what has been said, it follows that appellant's complaints at the court's action in overruling his first application for a continuance is without merit.

By bill of exceptions No. 2, appellant complains at the court's action in permitting the state to cross-examine the defendant and show by him that he had been indicted and tried in a liquor case in Marshall, Tex., and to show further that there were two cases pending against him in the federal court for violation of the liquor law, and that there was another case pending against him in the district court of Gregg county charging him with the sale of liquor. The objection to this testimony is that it was prejudicial and improper, and if it was admissible at all the record was the best evidence. These objections were properly overruled. When the appellant takes the stand and testifies as a witness, he is subject to the same rules that govern other witnesses in the case. See section 147, Branch's P. C. It has been held by this court in an unbroken line of decisions that it is always permissible for the state to show by a witness on cross-examination that he has been indicted or a legal accusation has been made against him for a felony or for a misdemeanor involving moral turpitude, if not too remote. The rule is that this testimony is not admissible for the purpose of showing the appellant's guilt, but it is admissible as touching his credibility as a witness. It has also been held that the judgment of conviction need not be produced when the only object is to impeach and not to disqualify the witness. See section 167, Branch's Ann. P. C., for full collation of authorities.

By bill of exceptions No. 3, appellant complains at the court's action in permitting the state to introduce the testimony of the witness Sol Dukes. The testimony of this witness was to the effect that on the day the appellant's camp was raided, he was present and had gone there for the purpose of and had bought whisky from the appellant. Appellant's objection to the introduction of this testimony was to the effect that at the beginning of the trial he had moved the court to require the state to confront him with the witnesses, and said motion was granted, and that the witness Sol Dukes was not among those that the state had given him a list of, and that no subpœna had been issued for said witness at the time the appellant went to trial, and that after the state had introduced what the appellant thought was all of its testimony, and the appellant was practically through with the introduction of his testimony and had permitted his witnesses to leave town and go back to Harrison...