Majors v. State

• Decision Date: 06 May 1925
• Docket Number: (No. 8828.)
• Citation: 273 S.W. 267
• Parties: MAJORS v. STATE.
• Court: Texas Court of Criminal Appeals

273 S.W. 267

MAJORS v. STATE.

(No. 8828.)

Court of Criminal Appeals of Texas.

May 6, 1925.

Rehearing Denied June 10, 1925.

Commissioners' Decision.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

E. R. Majors was convicted of manufacturing liquor, and he appeals. Affirmed.

Howth, Adams, O'Fiel & Hart, of Beaumont, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

Appellant was convicted in the Fifty-Eighth district court of Jefferson county of manufacturing liquor, and his punishment assessed at three years' confinement in the penitentiary.

The record shows that the appellant and one Pete Biano were jointly indicted for manufacturing intoxicating liquors, and said Biano was first tried and convicted and given a suspended sentence, and immediately thereafter appellant was tried and convicted as above stated.

Appellant complains of the action of the court in not permitting him to use his codefendant as a witness in his behalf to show that the equipment and all of the ingredients used and being used to manufacture the whisky in question belonged to said witness, and not to the defendant. The undisputed facts show that the witness Biano was then under a suspended sentence for the same offense charged against this defendant. Article 91, P. C., and article 791, C. C. P., of Vernon's Statutes provide that persons, charged in the same or separate indictments, cannot be introduced as witnesses for one another, but may claim a severance and, if any one is acquitted or the prosecution dismissed, he can testify in behalf of the others. Articles 865b to 865f, inclusive, of Vernon's C. C. P., deal with suspended sentences, and we think contemplate that the defendant, when under judgment of a suspended sentence, is to remain under the effects of such charge and conviction during the time assessed against him, and until the expiration thereof; then he is permitted to allege and show the court by evidence that he has not been convicted of any other felony during said time, and no other felony charge is pending against him; thereupon he can have the judgment set aside and the case dismissed. These statutes relative to suspended sentences and articles 91 and 791, supra, we think, when construed together, clearly show that it was the intention of the Legislature to render the witness Biano an incompetent witness for the defendant. Furthermore, this contention made by the defendant has been overruled by this court in the cases of Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202, and Sunday v. State, 77 Tex. Cr. R. 26, 177 S. W. 97.

Appellant complains of the action of the court in refusing to give a special charge in this case to the effect that the defendant could not be convicted upon his own uncorroborated incriminatory statements alone. Under the peculiar facts of this case, we are unable to agree with the appellant in this contention, and especially as being applicable to the facts in this case. The record discloses the still was in operation, and that the statements, made by the defendant, were made at the still, at the time of his arrest and immediately thereafter, to the effect that he was not doing anything more than other people, and was not making poisonous whisky but was making good whisky, and remarking that "you have got me." These were res gestæ statements, and we do not believe that the principle of law contended for by defendant would be applicable to res gestæ statements. Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095.

There is also complaint made of the refusal of the court to give a special charge requested by the defendant to the effect that his presence, where the whisky was made, was not sufficient to warrant a conviction. We concede that this is a sound proposition of law, but do not assent to the proposition that it was error to refuse the charge in this case. The undisputed testimony shows, when the officers ran up and arrested the defendant and his codefendant, that they were making whisky, and that the defendant made the statements above set out, and there was no evidence to the contrary introduced by the defendant, and he was not a witness in his own behalf, and in fact no issue raised which authorized as required such a charge, and we do not believe the court was in error in excluding same.

There is also complaint made by appellant to the action of the court in ruling upon the testimony of Sheriff Garner on cross-examination, wherein it appears that appellant's counsel insisted that the sheriff should be made to state how much whisky he drank which was taken from the possession of the appellant at the time of the arrest. The sheriff testified that he tasted the liquor, and that it was whisky, and the bill as qualified by the court, which we are bound to accept as a part of the record, states that after the witness had testified that he had about forty years' experience in tasting and smelling whisky, and that he had tasted the whisky in question and that it was whisky, then the appellant insisted on his stating how much of same he drank, and the witness responded that he could not say, and would not say, how much he drank, because he did not know. We are of the opinion that there is no error shown in the record in this particular.

The next and most serious question we find in the record is the appellant's complaint of the court's trying this case over his objection, because the...