Morrow v. State

• Decision Date: 03 February 1909
• Citation: 120 S.W. 491
• Parties: MORROW v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 491

MORROW v. STATE.

Court of Criminal Appeals of Texas.

February 3, 1909.

Rehearing Denied June 23, 1909.

Appeal from Navarro County Court; C. L. Jester, Judge.

Ben Morrow was convicted of unlawful sale of liquor, and he appeals. Affirmed.

Callicut & Call and W. W. Ballew, for appellant. F. J. McCord, Asst. Atty. Gen., and Richard Mays, for the State.

RAMSEY, J.

The conviction in this case was for the unlawful sale of intoxicating liquors, the punishment being assessed at a fine of $100 and 20 days' confinement in the county jail. The record is very voluminous and many questions are raised by counsel for appellant, the more important of which we will now consider.

1. It is urged that the court erred in permitting private counsel upon the voir dire examination of the jurors to state, over appellant's objection, that the witness upon whose testimony a conviction would be sought was a private detective, and that the law does not require his evidence to be corroborated, but that the same stood in respect to the case as the testimony of any other witness, and that the court would so charge them; and that the court erred in stating to the jury, orally, that while it was true that detectives were like other witnesses in the case, and would not have to be corroborated by other testimony, yet he would not charge the jury to this effect in his written charge. The statement of counsel for the prosecution was a correct statement of the law, and it was proper, with a view of exercising intelligently his peremptory challenges, to ask the jury with reference to their attitude and prejudice, if any, against the testimony of a witness of this kind. The bill of exceptions as approved by the court states that when the matter was under discussion he stated to counsel in the presence of the jury that he understood the law to be that a detective or the purchaser of intoxicating liquors need not be corroborated, but that he would not so charge. Thereupon appellant's counsel excepted to the court's statement that he so understood it to be the law, and the court thereupon stated that he would withdraw the remark, and instructed the jury that they would not consider it. We cannot see, under the explanation of the court, that there was any error committed, and in any event, when upon objection the statement of the court was withdrawn, that appellant could have been injured thereby. See article 407 of the Penal Code of 1895 for ample warrant for the action of the court. This article is as follows: "When the sale of intoxicating liquor has been prohibited in any county, justice precinct, city or town, the repeal of such prohibition shall not exempt from punishment any person who may have offended against any of the provisions of the law while it was in force, and the fact that a person purchases intoxicating liquor from any one who sells it in violation of the provisions of this chapter shall not constitute such person an accomplice."

2. It is urged that the court erred in permitting private counsel for the prosecution to repeatedly ask the witness Hodge if he was at the defendant's place of business during the month of February, 1907, and, if so, if he saw appellant, and after the court had excluded the question upon objection of counsel, and in permitting said private counsel to renew said question and state in the presence of the jury that the testimony was material and legitimate in this, that he expected to prove by this witness and the cashier of the City National Bank that the defendant was in his place of business during the month of February, 1907, and that the witness Hodge saw appellant in his place of business on the 9th of February, 1907, which would contradict and impeach the testimony of appellant's wife and of Dr. Hodge, and that he expected to prove by one Cheney, the cashier of the bank, that appellant personally made deposits in the City Bank during the time appellant's wife testified he was at home sick in bed. In approving this bill, the court says: "It is proper to state in connection with this bill that, when the evidence was first tendered, the defendant objected, and this objection the court sustained. The state's counsel, in arguing the admissibility of the evidence after the court ruled, enacted the above-described scene in his effort to induce the court to reverse his ruling." It will be seen, therefore, that it is not complained that the actual ruling of the court is erroneous, but the exception is leveled against the statement of counsel in discussing the matter to the court and in the presence of the jury. We know how difficult it is, often, to intelligently discuss the admissibility of testimony without a statement of the substance at least of the testimony to be offered in evidence and its relation to the case at bar. If we were to adopt the rule that cases will be reversed because of the statements or argument of counsel on questions of law before the court in the presence of the jury, it would, we believe, be seldom found that any conviction could be sustained where there was a serious contest, because it would not often happen that counsel for the state would be correct in every case where testimony was offered; and to reverse the judgment where the supposed misconduct went only to the extent of a vigorous insistence of counsel's opinion, with illustrations of his views, would be a doctrine both new and dangerous.

3. Again, it is urged that the court erred in permitting counsel for the state to ask the wife of appellant if she did not know that there were 8 or 10 indictments against her husband for the sale of intoxicating liquor during the month of February, 1907, for the very days she had sworn defendant was confined to his bed, and requiring the witness to answer the same over the objection of defendant's counsel. It should be stated in this connection that appellant stood charged with the sale of intoxicating liquor on the 4th day of February, 1907. His wife had testified to his sickness on that day and for several days succeeding. If appellant was not sick immediately succeeding the day charged, it would furnish some ground of attack upon her testimony that he was not sick on February 4th. If it be true that there were prosecutions covering many days after February 4th, it would furnish some ground of attack upon her testimony, and that it was induced by her knowledge of the charges against him on the days succeeding February 4, 1907. The court states, in explanation of the bill, that this testimony was only admitted on cross-examination for the purpose of affecting the credibility of the witness (defendant's wife) before the jury, and the court so stated at the time. Being thus limited, it is clear to our minds that...