McBee v. State
Decision Date | 11 February 1931 |
Docket Number | No. 13867.,13867. |
Citation | 44 S.W.2d 699 |
Parties | McBEE v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, McCulloch County; E. J. Miller, Judge.
E. R. McBee was convicted of selling intoxicating liquor, and he appeals.
Affirmed.
Shropshire & Adkins, of Brady, M. E. Blackburn, and Coke R. Stevenson, both of Junction, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.
There were but two witnesses in the case, the alleged purchaser and another young man who accompanied him on said occasion. Each of these witnesses, by many statements and expressions appearing in their testimony, positively identify appellant as the man who sold the intoxicating liquor. To set out at length these statements would involve a good deal of space. We will, however, quote from each to some extent. Lang swore: On cross-examination this witness said he did not remember what time of day it was that he first met McBee that day; that he did not know whether this defendant was the same man that he saw that day or not. On redirect examination he said: The other man, Bratton, swore that he knew the defendant, and knew him at the time of the alleged sale. He further said he thought he saw him December 17, 1925. We quote: In his cross-examination this witness said: On redirect examination this witness said:
Appellant contends in his brief that there was a failure to identify him; that in their retirement the jury received evidence other than that given by witnesses; that appellant was Bratton's agent in procuring the whisky. In his charge the court told the jury: "Even though you may believe beyond a reasonable doubt that the witness, Jack Bratton, bought a pint of whiskey at the time and place alleged, you cannot convict this defendant unless you believe beyond a reasonable doubt that the defendant is the identical person, if any, who sold said whiskey and if you have a reasonable doubt as to this you will find the defendant not guilty." The statement of facts reveals that practically all through the testimony each of the two witnesses directly and positively identified appellant, but that near the close of the cross-examination of each there was an affirmation that he would not say positively that appellant was the man. In this condition of the record we do not think the jury without testimony to support their finding that he was the seller of the whisky.
Upon the question of misconduct of the jurors, there was no testimony heard by the trial judge when the motion for new trial was presented, and none is here presented either by recitals in a bill of exceptions or by separate statement of facts. Bill of exceptions No. 2 seeks to bring forward this complaint. Same sets out a lengthy excerpt from appellant's motion for new trial, also the contents of an affidavit attached to said motion, in effect, that a juror in the case had told the affiants that he did state to his fellow jurors as follows: On the hearing of the motion for new trial appellant offered the testimony of the two men who had made said affidavit, and his own testimony, to substantiate the averments in his motion. The bill sets out that the trial court refused to hear said parties or any of them concerning said matters; that the makers of said affidavit would have sworn to the matters set up in same.
We perceive no error in the action of the trial court in declining to hear this testimony. While the witness Bratton swore that he was before the grand jury which returned this indictment, neither he nor any other person gave testimony as to what testimony he gave when before said grand jury. If the juror Evans, while in their retirement, had stated to other members of the trial jury his belief that Bratton did not swear the truth on this trial, and his belief that Bratton swore differently while before the grand jury—and if he had even ventured his belief as to what Bratton must have testified when before the grand jury—this would be a matter of which neither the trial court nor this court could take cognizance. Many cases have followed and quoted with approval what this court said in Jack's Case, 20 Tex. App. 656. See Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Moore v. State, 94 Tex. Cr. R. 492, 251 S. W. 1086; Ross v. State, 100 Tex. Cr. R. 299, 273 S. W. 582, 584; Taylor v. State, 101 Tex. Cr. R. 204, 274 S. W. 622; Straley v. State, 106 Tex. Cr. R. 131, 290 S. W. 766; Rachels v. State, 106 Tex. Cr. R. 656, 293 S. W. 1118; Jordan v. State, 107 Tex. Cr. R. 311, 296 S. W. 582; Bloxom v. State, 112 Tex. Cr. R. 341, 16 S.W.(2d) 1098. We reproduce the quotation from said Jack's Case, supra, as set out in the Ross Case, supra, opinion by Morrow, P. J.:
It is also stated in said bill of exceptions that process was prayed for in said motion for new trial for all the jurors. Said motion was filed May 24, 1930, and if the fact that same contained a prayer for process of any kind was then brought to the attention of the trial court or the district clerk, or if any request was then made for process for the jurors, it is nowhere shown. When the motion for new trial was heard on May 28th, same was overruled. There is no showing that any process had been issued for any of the jurors, or that same had been asked other than the prayer for same which was in the motion for new trial. In his qualification to the bill of exceptions the court certifies that the motion was acted on at the request of the attorney for the appellant and that no process was refused unless the overruling of the motion amount to such refusal. Nothing appears showing any necessity for an order from the court for process for jurors. It is not shown that any application for same had been made to the clerk, or that he had refused to issue such process. The bill shows affirmatively that one juror was present at the hearing of the motion for new trial, but was not called to testify, and the motion was overruled. Under the facts we think the bill shows no error.
Appellant argues that the court should have submitted the theory of his agency for Bratton in purchasing the whisky. The special charge on this theory does not show to have ever been presented to the court below, or called to his attention, nor is there any bill of exceptions to its refusal. The contention seems to be that the whisky delivered to Bratton by appellant belonged to one Lemons, and that appellant merely got it from Lemons for Bratton. The testimony of Bratton is that on the occasion in question he asked appellant, when he reached the place where he obtained the...
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