James v. State

• Citation: 138 S.W. 612
• Parties: JAMES v. STATE.
• Decision Date: 31 May 1911
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

138 S.W. 612

JAMES v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1911.

Rehearing Denied June 23, 1911.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Harry James appeals from a conviction. Affirmed.

J. M. Williams, F. M. Brooks, and Horace W. Vaughan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at one year confinement in the penitentiary.

The evidence discloses that the alleged purchaser, Williams, went into appellant's place of business on or about the 11th day of July, and got a pint of whisky off the ice box. When he entered, he found in the place a little negro girl and appellant. His recollection is appellant was lying on a couch, and witness said, "Hello Harry," or something to that effect, and "How are you?" Witness said, "I would like to get a bottle." Appellant did not reply, but got up, sat on the side of the couch a moment or two, and walked around behind the curtain to his left toward the ice box and around behind the counter. When he did that, witness walked towards the water cooler. When appellant walked around behind the curtain, he passed out of the sight of the witness, who waited for him to return, "expecting him to come out another way." He came around by the ice cooler where witness was, around the ice box, and went behind the counter. When appellant did this, witness went around to the ice box behind the curtain, took a pint of whisky off the ice box, put it in his pocket, laid 75 cents on the table, and walked away. There were other sales mentioned during the testimony that occurred along the same general plan. Appellant denied all these matters.

1. Appellant's first bill of exception recites that the state offered the following question and answer of Bragg Williams, the prosecuting witness: "Q. Did you get any intoxicating liquor in and from the defendant's place of business in and during the month of July? A. Yes, sir." To which counsel for appellant objected for the reason that the question and answer fixes no specific date, and neither proves nor tends to prove the allegations of a sale on the 11th day of July, and the court overruled said objection. The indictment was returned into court on the 5th of December after the alleged sale in July. This bill is not specific. It does not show definitely what bearing, if any, the answer of the witness had upon appellant's case. It is well settled that the state, as a rule, is not confined to the particular date set out in the indictment, and a date other than that specifically mentioned may be proved if it occurred prior to the presentment of the indictment and within limitation. This is the general rule, but not the invariable one. This testimony may have been followed by evidence fixing the particular date relied upon by the state, and, if we refer to the statement of facts, we would find this to be the case. So the witness does fix the 11th of July as one on which he bought intoxicating liquor from appellant.

2. Another bill recites the following: While Bragg Williams, the prosecuting witness, was upon the stand, he was asked: "How many times or different times did you get whisky in his place of business on the 6th? A. Twice." To which question and answer defendant objected because the question and answer refers to another and different sale than that alleged in this cause, and because the defendant had already been tried for one sale alleged to have been made by him on the 6th day of July, and same was then in the hands of the jury, and because the same was prejudicial to the right of the defendant to a fair and impartial trial. This bill is too indefinite to point out any error.

The grounds of objection are not to be treated as statements of fact. It is not alleged as a matter of fact in the bill that appellant had been tried for a sale on the 6th of July, or what was the result of the verdict; nor is it shown that the state was relying upon this date as the date of sale. The state may have been and doubtless was trying to show the peculiar system by which appellant made sales.

A bill of exception to the admission of testimony must manifest on its face that the court committed such error against the accused that will require a reversal of the judgment for such admission. Presumptions are in favor of the correctness of the rulings of the trial court, and bills of exception attacking these rulings must show upon the face of the bill the rulings were wrong. This bill of exception does not exclude or propose to exclude reasons why this testimony might or may have been admissible.

3. Another bill recites that counsel for defendant made objection "to any and all of the evidence introduced by the state of other and different sales of intoxicating liquors alleged to have been made by the defendant than the particular sale for which the defendant was then being tried," because the testimony neither proved nor tended to prove the sale alleged to have been made by the defendant on the 11th day of July, but did have a tendency to prejudice the minds of the jury against him. The trouble with this bill is the same as with the others. It is too indefinite, does not show what other or different sales of intoxicating liquors were introduced, nor that as a matter of fact they had no bearing upon the case, and was calculated to injure. The grounds of objection do not bring before the court for review those matters as statements of fact. The bill of exception on its face should have shown by proper averments the fact that other and different sales admitted were improperly admitted. This the bill does not do.

4. Another bill recites the following question appellant offered to ask the prosecuting witness Bragg Williams: "Q. I will ask you Mr. Williams, if you didn't pursue and follow the occupation of a gambler for years?" The state objected, and the objection was sustained. Appellant objected to the ruling of the court "because the question would have brought the answer, if truthfully answered, that the witness had followed such occupation for years, and because such answer would have gone to his credibility as a witness against the defendant." This bill is very indefinite. What the answer would have been is not set out. The ground of objection was that, if it had been truthfully answered, he would have stated that he did follow such occupation, but that is only a ground of objection, and does not undertake to state what the witness would have answered.

5. Another bill recites that the state asked the following question, and received the following answer from the witness Williams: "What did you leave for? A. I anticipated leaving a week before this trouble came up; after being summoned before the court. I left a little earlier because I didn't want to testify against any one; in fact, I didn't want to be before the grand jury. I left earlier than I would have because I didn't want to testify against the defendant." Appellant objected because the answer was...