Lawson v. State, 22996.

• Decision Date: 03 January 1945
• Docket Number: No. 22996.,22996.
• Citation: 185 S.W.2d 439
• Parties: LAWSON v. STATE.
• Court: Texas Court of Criminal Appeals

185 S.W.2d 439

LAWSON v. STATE.

No. 22996.

Court of Criminal Appeals of Texas.

January 3, 1945.

Rehearing Denied February 28, 1945.

Commissioners' Decision.

Appeal from Lubbock County Court; G. V. Pardue, Judge.

Ruby N. Lawson was convicted of selling whisky in a dry area, and he appeals.

Affirmed.

Jimmie Cunningham and Eugene F. Mathis, both of Lubbock, for appellant.

Ernest G. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for the sale of whisky in a dry area. The punishment assessed is a fine of $100.

The record discloses that the State and the defendant agreed that Lubbock County was a dry area.

The evidence adduced by the State in support of the allegations in the indictment, briefly stated, showed that on the 5th day of February, 1944, W. E. Russell, an agent of the Texas Liquor Control Board, purchased from the appellant a pint of whisky for which he paid six dollars; that appellant placed the money in the cash register after he had taken the pint of whisky from under it and delivered it to Russell. Appellant and his witness, J. S. Johnson, denied that he sold any whisky to Russell. Each of them testified that Russell came to the appellant's place of business and asked to buy some whisky; that appellant told him he did not have any, whereupon Russell inquired of appellant if he knew where any might be obtained; that appellant replied that he did, whereupon Russell handed him six dollars and asked him to go and get a pint; that appellant left and in about twenty or thirty minutes returned with a pint of whisky and delivered it to Russell. Appellant further testified that he had never, in his lifetime, sold any whisky to Russell; that in the instant case, he acted as agent for Russell.

It will be noted from the foregoing statement of the evidence that an issue of fact was raised which the jury decided adversely to the appellant's contention.

By separate bills of exception appellant brings forward nine complaints. However, quite a number of them can be considered and disposed of together.

By bill of exception No. 1, it is shown that appellant, on cross-examination of W. E. Russell, sought to show that he (Russell) had lived at Longview, Childress, Austin, and Fort Worth. The State objected to this testimony on the ground that it was irrelevant and immaterial. The court sustained the objection and appellant excepted. We see no error reflected by the bill.

Bill No. 2 is equally without merit.

Bill No. 3 shows that appellant undertook to prove by J. S. Johnson that he was at appellant's place of business with a number of other persons at the time in question; that they were drinking some whisky. The State objected to this testimony on the ground that it was immaterial and irrelevant as to whether or not they were drinking whisky at the time. The court sustained the State's objection, to which appellant excepted. We fail to understand just how this evidence became relevant to any issue in the case. Hence, we overrule his contention.

Bill No. 4 shows that appellant proved that when W. E. Russell came to his place of business he wanted to buy a drink out of the bottle which the boys present had; that J. S. Johnson said he didn't like Russell's looks and remarked to the boys that Russell appeared to be a "dope fiend" and he would rather not drink with him. The State objected to this testimony and the court, in sustaining the objection, remarked that the witness was not an expert and was not qualified to express an opinion as to whether or not Russell was a dope fiend. He then instructed the jury not to consider the evidence for any purpose. Appellant objected to the court's remark on the ground that it was a comment on the weight of the evidence. The objection was overruled and the appellant excepted. We fail to understand how this was a comment on the weight of the evidence in view of the fact that the court withdrew it from the jury and it did not reach the jury to be considered and weighed by them.

Bill No. 5 shows that the witness J. S. Johnson, while testifying in behalf of the appellant, stated among other things that he saw appellant go and get a pint of whisky from a bootlegger and give him the money. Upon inquiry by the court as to whether the witness was present when appellant got the whisky from the bootlegger and handed the money to the bootlegger, he replied: "No, not the bootlegger. No, I said Russell." Upon objection by the State the court instructed the jury not to consider the testimony given by Johnson to the effect that appellant took the money and gave it to the bootlegger, because he was not present and could not know whether or not appellant got the whisky from a bootlegger and gave him the money. Appellant objected to the court's remark on the ground that it was a comment on the weight of the evidence. What we have said in disposing of Bill No. 4 applies here, and for the reasons there stated, we overrule his contention.

Bill No. 6 shows that the State, on cross-examination of Johnson, inquired of him if his testimony in this case is identical with that which he gave in another case against the appellant. The court sustained appellant's objection and instructed the jury not to consider anything relating to any other trial. Appellant contends, however, that notwithstanding the court's instruction, the question was so highly prejudicial that it could not be removed from the minds of the jury by an instruction from the court. The bill fails to show what answer, if any, the witness gave...