Martoni v. State

• Decision Date: 20 May 1914
• Docket Number: (No. 3133.)
• Citation: 167 S.W. 349
• Parties: MARTONI v. STATE.
• Court: Texas Court of Criminal Appeals

167 S.W. 349

MARTONI v. STATE.

(No. 3133.)

Court of Criminal Appeals of Texas.

May 20, 1914.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Syl Martoni was convicted of unlawfully selling whisky in a prohibition county, and he appeals. Reformed and affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted for unlawfully selling whisky in a prohibition county, and his punishment assessed at two years in the penitentiary.

The evidence by the state makes a clear case against appellant, showing a sale. Appellant denied making the sale. The state's main witness, A. Smissen, was a detective employed by the county attorney of Bowie county to ferret out unlawful sales of intoxicating liquors, and was paid as such for his services. He testified that a sale of whisky by appellant was made to him, and he paid him $1 therefor. Under the statute and many decisions of this state he was not an accomplice, so that the court did not err in not charging that he was such, and requiring his testimony to be corroborated.

Appellant duly filed his sworn plea seeking to have his sentence suspended under the statute, if convicted. By this he put his general reputation and character as a peaceable law-abiding citizen in controversy, and the state had the right to introduce evidence on these subjects. It was therefore permissible for the state to show that he had been indicted for various offenses, among others, four times for bootlegging, making unlawful sales of intoxicating liquors in prohibition territory, which were felonies, and that four indictments other than the one on which he was being tried were then pending against him. Williamson v. State, 167 S. W. 360, decided May 13, 1914. This was also admissible as affecting his credibility as a witness. He testified in the case. So that all evidence objected to by appellant on this line was admissible, and his bills thereabouts show no error.

Appellant introduced Mr. Watlington, a deputy sheriff, who testified in his favor, disputing Mr. Anderson, one of the state's material witnesses. After he got through with his direct examination, he was turned over to the state for cross-examination. The state had the right to ask and have him to answer any question that was material in the case. The cross-examination did not have to be limited by what appellant had drawn out on direct examination. Section 1112, White's C. C. P. Ann.

By these two officers, Watlington and Anderson, the state proved in substance that about the time of the alleged offense against appellant they got out a search warrant and searched the house where appellant stayed and found therein his trunk, which contained some 72 to 76 pint bottles of whisky. This evidence was admissible under the many decisions of this court. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392; Starbeck v. State, 53 Tex. Cr. R. 195, 109 S. W. 162; Southworth v. State, 52 Tex. Cr. R. 540, 109 S. W. 133; Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806; Myers v. State, 56 Tex. Cr. R. 224, 118 S. W. 1032; Ellis v State, 59 Tex. Cr. R. 628, 130 S. W. 170; Hardgraves v. State, 61 Tex. Cr. R. 327, 135 S. W. 132; Cowley v. State, 161 S. W. 471.

There was some question as to when this liquor in the trunk was found, appellant claiming that it was some six weeks, at least, after the alleged offense; but the court, in allowing his bill, expressly stated, "This intoxicating liquor was found about the time of the alleged offense." He accepted this bill as thus qualified, and is bound thereby under all of the decisions of this court. Judge White says (section 858, C. C. P. Ann.):

"When a bill of exceptions contradicts a statement of facts, in any specified particular, the bill will be held to control and to state correctly the disputed matter," citing many cases.

It is needless to collate the very large number of cases so holding continuously down to this date. But see James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Best v. State, 164 S. W. 997.

After he had testified in his own behalf, on cross-examination, the district attorney was permitted, over his objections, to ask him if he had not had a United States internal revenue license to sell whisky. He at first denied that he had had. On the district attorney further pressing him, he admitted that he had had, but was not certain as to the time. He thought, however, it was for 1913, and then was asked if the license was not dated back to cover a period behind what he had paid for. He denied this. What the state was seeking to show was that he had this internal revenue license at the time of the sale alleged in this case, or it covered that period of time. There was no error in the court permitting the district attorney to ask these questions. If it had developed that he had license covering the period of time the sale was alleged in this case, it would have been not only admissible, but strong evidence against him in this case. The evidence, however, was admissible under his plea for suspended sentence, because it affected his character and standing as a citizen even at the time of this trial to show that he had license to sell intoxicating liquors in prohibition territory, for the jury had to determine whether with that and all the other circumstances against him they would suspend his sentence.

Again, in order to make it certain about when the license applied, he afterwards introduced a receipt for the money for the license, which was dated September 11, 1913, and showed that the $25 he paid for the license was for the year beginning September 1, 1913. When the court charged the jury, he told them:

"The testimony as to the defendant having United States revenue license is withdrawn from you as evidence, and you will not use it against the defendant for any purpose; but you will wholly disregard same."

Notwithstanding this, appellant claims that the evidence was so prejudicial to him that the effect of it could not be eradicated by the court's charge. As stated above, the evidence was admissible under his plea for suspended sentence; but, if it had not been, it certainly is not of such a nature as to authorize or justify this court to reverse. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 870; Trotter v. State, 37 Tex. Cr....