Myers v. State

• Decision Date: 19 February 1908
• Citation: 108 S.W. 392
• Parties: MYERS v. STATE.
• Court: Texas Court of Criminal Appeals

108 S.W. 392

MYERS v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1908.

Appeal from Fannin County Court; H. A. Cunningham, Judge.

Jake Myers was convicted of violating the local option law, and he appeals. Reversed.

McGrady & McMahon, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of violating the local option law; his punishment being assessed at $25 fine and 20 days in the county jail.

We do not deem it necessary to pass upon but one question, and that is presented by bills of exceptions Nos. 3 and 4. Bill No. 3 shows that the state was permitted, over appellant's objection, to prove by the witness Tom Adams the following facts: "Some time this year, I don't remember just when, the officers came to defendant's place of business and seized under a search warrant 43 quarts of whisky and about 1,000 bottles of frosty; some labeled and some unlabeled. Defendant replevied the goods and got them back. I was working for the defendant at the time, selling frosty and other soft drinks, but did not sell whisky, and knew nothing about the whisky being there. It was in another room, and I had no access to it." Appellant objected to this testimony on the ground that same was irrelevant and immaterial, and calculated to prejudice the jury against the defendant, threw no light on the transaction, was not shown to have been at or about the time of this alleged sale, and did not prove that witness had or kept whisky at the time of the sale alleged to have been made, did not prove any system, but was evidence tending to show other violations of the law, and in no way connected with this transaction. The bill is approved, with this statement by the court: "Evidence had been submitted by defendant to the effect that he was the purchaser, instead of the seller, of the whisky in question; and evidence complained of was admissible for what it was worth as tending to show the falsity of defendant's defense, and was admitted for that purpose only." Bill of exceptions No. 4 shows that state's counsel, on cross-examination of appellant, ever his objection, proved by appellant the following: "About six weeks after this sale is alleged to have been made, about the middle of May this year, the officers came to my place of business and seized 43 quarts of whisky and about 1,000 bottles of frosty; some labeled and some unlabeled. I gave a replevy bond and got them back. Such whisky and all of the unlabeled frosty was condemned by the justice and county courts as a nuisance, and the state secured judgment against me and my sureties for the amount of the goods and the fees allowed the officers and costs. I appealed the case to the Court of Civil Appeals, and it is now pending in the higher court." To this last testimony appellant objected, because all of such transaction was after the alleged offense; did not tend to prove system, the sale in this case having been shown by the state's witness to have been a straight sale or nothing; because the judgment of the other court was the best evidence; because irrelevant and immaterial, threw no light on this case, and was offered for the purpose of and calculated to prejudice the minds of the jury against the defendant; was proving other offenses and suits against the defendant, that did not involve moral turpitude, and was inadmissible for any purpose.

The information in this case charges that appellant sold the whisky to the prosecuting witness on or about the 14th of April, 1907, and the prosecuting witness swears that on Sunday, April 14, 1907, he purchased the whisky. Bill of exceptions No. 4, as shown above, shows that the whisky was seized by the officers about six weeks after the sale was alleged to have been made, about the middle of May this year. As appellant suggests, this testimony was held...