Long v. State

• Decision Date: 19 January 1910
• Citation: 124 S.W. 640
• Parties: LONG v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 640

LONG v. STATE.

Court of Criminal Appeals of Texas.

January 19, 1910.

Appeal from McLennan County Court; Tom L. McCullough, Judge.

Tom Long was convicted of selling liquor on Sunday, and appeals. Reversed and remanded.

O. L. Stribling, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was charged, and on hearing was convicted, in the county court of McLennan county on March 5, 1909, of selling whisky on Sunday in violation of law.

It was shown by the testimony of one Richard Todd that he was in Waco on August 9, 1908, having arrived that day on an excursion train; that about 3 o'clock that afternoon he went to a shed in an alleyway, where there was a hole about eight or nine inches square, down near the ground in the back end of a building next to the alley, and knocked, and heard some answer on the inside; that he then said, "I want a bottle of gin," and stuck 25 cents in the hole, and in about a minute a bottle of gin was handed out to him through the hole. He did not know who it was, nor did he recognize appellant. Appellant denied the sale, or having any knowledge or connection with it, or that the place where the whisky was received was any part of the saloon building where his employer carried on his business. He testified, further, that a few days before this a policeman, whose name he gave, had brought an old negro by the name of Bates, whom he found sick and disabled, and had put him in one of these rooms.

Over the objection of appellant the state was permitted to prove that, when the officer took the bottle from Richard Todd, he asked him where he got the bottle of gin; that he said he did not know, but took him to the back end of Clark's saloon, and told him that that was where he got the gin, and showed him how he got it, and where he put the money; that he stated he put the money in a hole in the wall, and showed him the hole. This was objected to as hearsay, immaterial, and irrelevant, not binding on defendant, and because defendant was not present at the time of the making of such statements by the said Richard Todd to this witness. It would have been competent for the officer to have identified the place shown him by the witness. The conversation and details of the matter testified to in appellant's absence would not be admissible. We think this case comes clearly within the rule laid down by the following authorities: Newman v. State, 55 Tex. Cr. R. 376, 116 S. W. 1156; Gormer v....