Lopez v. State

• Decision Date: 30 October 1918
• Docket Number: (No. 5148.)
• Citation: 208 S.W. 167
• Parties: LOPEZ v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W. 167

LOPEZ v. STATE.

(No. 5148.)

Court of Criminal Appeals of Texas.

October 30, 1918.

On Motion for Rehearing, January 22, 1919.

Appeal from District Court, Brooks County; V. W. Taylor, Judge.

Antonio Lopez was convicted of violating the local option law, and he appeals. Affirmed.

J. W. Wilson, of Falfurrias, for appellant.

E. B. Hendricks, 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's confinement in the penitentiary.

There is but one bill of exceptions found in the record. It recites that while the state's witness Pena was being cross-examined by appellant he propounded the following question: "Was the money that was taken in put in that box?" The purpose of the question was to show that all money taken in at the gambling house was put in a box which, it had been theretofore shown, was for the purpose of placing money and other things, and the prosecution objected to said question upon the following ground: "We would like for that question to be confined to the question in issue." This was sustained, and the question was excluded. The reply would have been: "Yes; all money that was taken in was put in that box, and the money I paid him was placed in that box." Appellant excepted to the ruling of the court. The judge qualifies this bill, and, among other things, states:

"The witness had already testified on cross-examination by defendant's counsel that there was a drawer or box there where they kept the decks, chips, cards, and money where he was gambling, and the witness was permitted to testify as to what was done with the money he gave for the booze, and he testified that the money he gave for the booze was delivered in each instance by him to Pancho Perez, and upon one or more occasions by Pancho to Antonio Lopez, the defendant, and, when not delivered to the defendant Pancho, that it was not placed in said box, but placed in Pancho's pocket, and, when delivered to Antonio, placed in Antonio's pocket; the witness testifying absolutely contrary to what defendant says he expected to prove by him."

This is a quotation from the judge's qualification.

The bill is too indefinite, and does not make it appear just what was the object and purpose of the introduction of the excluded testimony or its connection with the facts in regard to selling the whisky. The witness Pena was the main state's witness. He testified to the sale by appellant to himself of more than one bottle of mescal. This was denied by appellant. We think the bill of exceptions is indefinite. It does not show in what connection the testimony came, or why he was seeking to introduce it. Under the court's qualification the testimony was admissible. The facts further show that there was a gambling game in progress; that appellant was present, and when the witness desired to buy intoxicating liquors the defendant went away and came back directly with the mescal, and the witness Pena paid him for it. This occurred five times during the time witness was at the game and was purchasing mescal from appellant. This is the testimony of Pena. There was an issue between the state's witness and the appellant with reference to this matter. He denied having mescal; also that he sold or was...