Levine v. State

• Decision Date: 28 March 1896
• Citation: 34 S.W. 969
• Parties: LEVINE v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 969

LEVINE v. STATE.

Court of Criminal Appeals of Texas.

March 28, 1896.

Appeal from Navarro county court; M. L. Shelton, Judge.

L. Levine was convicted of keeping open his liquor saloon for traffic on Sunday, and appeals. Affirmed.

Croft & Croft, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of keeping open his liquor saloon for traffic on Sunday, and fined $30. On the trial of the case appellant offered to prove by the witnesses Daniels and Goldman, in substance, that Walter McKinney, the prosecutor, had told them that he knew nothing against appellant; that appellant owed him for five days' witness fees, and would not pay him, and that he intended to file complaints enough against appellant to run him out of town, etc. The state, it appears, objected to this testimony on the ground that a predicate had not been laid for the introduction of this testimony while Walter McKinney was on the stand, and that he was recalled for the purpose of laying such predicate. The court sustained the objection of the state. Appellant does not state the reason for the admission of this testimony, nor for what purpose he desired to introduce it. His bill in this respect is entirely silent. As has been repeatedly held, his bill of exception should have pointed out the purpose for which this testimony was sought to be introduced. There is one ground, it occurs to us, on which said testimony may have been admissible; that is, to impeach the witness McKinney. But the bill fails to show what said witness had testified to. This it should have done, and then it should appear that the contradictory evidence was upon a material issue. It may have been admissible on other grounds, and it may have been offered by appellant on some admissible ground, or it may have been offered by him on some plausible reason, or on some ground on which it was not admissible. Because testimony is admissible for some purpose, it does not follow that it is introduced for such purpose, and it may not occur to the court before whom the testimony is presented that it is admissible. Hence the object and purpose of the testimony should be stated to the court, in order that the lower court may be enabled to rule correctly as to its admissibility, and, if the evidence be rejected, this purpose should be stated in the bill of exceptions. See May v State, 25 Tex. App. 114, 7 S. W. 588; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; Graham v. State, 28 Tex. App. 582, 13 S. W. 1010; Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640. But, concede that the testimony above stated was obviously admissible for some purpose, and that the court, without suggestion, ought to have appreciated its admissibility, and have allowed it, yet the bill of exceptions, in connection with the explanation appended thereto by the court, shows that said witnesses would not testify as stated. How the court ascertained this fact is not stated. But the fact is certified to, and we do not feel authorized to go behind the certificate of the judge in this respect. It often occurs that when a proposition is made to prove certain facts by witnesses the jury is withdrawn, and the court hears the testimony. Such may have been the practice in this instance. We are not so informed, but the certificate of the judge shows that said witnesses would not testify as alleged. No exceptions are taken to the bill of exceptions as prepared in...