Lovelady v. State

• Citation: 255 S.W. 415
• Decision Date: 31 October 1923
• Docket Number: (No. 7307.)
• Parties: LOVELADY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 415

255 S.W. 415

LOVELADY v. STATE.

(No. 7307.)

Court of Criminal Appeals of Texas.

October 31, 1923.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Henry Lovelady was convicted of making whisky, and he appeals. Reversed and remanded.

Fairchild & Redditt of Lufkin, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

It appears from the state's evidence that the officers, while watching a still which had been previously discovered, saw the appellant go to it and engage in handling the mash and otherwise preparing to put the still into operation. After a short time, they went to the still and found a fire under it and the liquid boiling. About the time they reached the still, there began to drip from the coil what they called "shimmey," which, according to the state's testimony, was intoxicating. The acts of the appellant at the immediate time of the arrest, in connection with the still, and the fact that the liquid ran after the officers arrived, was not inadmissible by reason of the confession statute, but was embraced in the res gestæ rule. Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707.

Appellant filed an application for a suspended sentence. On the issue of the suspended sentence, appellant's mother testified that he had never been convicted of a felony; that she was 70 years of age and lame from paralysis, and could walk only with the aid of crutches; that she and her sister, who was 82 years old and helpless, lived in a rented house; that appellant, her youngest son, was the only one at home and her sole dependence for aid and support.

The first witness for the state was Homer Bell, who described the still and appellant's connection with it at the time immediately before his arrest. In order to impeach him, by contradictory statements, appellant introduced the witness Davis, a constable, who heard Bell testify at the examining trial. According to the bill of exceptions, Davis, on cross-examination, was asked if he knew the appellant's general reputation in regard to bootlegging and making liquor, to which he replied: "I can only answer in this way; officially, I heard it was bad." The objection to this question and answer was overruled. It was not competent to prove as original testimony that the appellant bore the general reputation of a bootlegger or whisky maker. He was on trial for making whisky, and his reputation as a whisky maker was not available to prove his guilt, nor was it relevant upon the issue of a suspended...