Newton v. State

• Decision Date: 02 May 1923
• Docket Number: (No. 7235.)
• Citation: 250 S.W. 1036
• Parties: NEWTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1036

250 S.W. 1036

NEWTON v. STATE.

(No. 7235.)

Court of Criminal Appeals of Texas.

May 2, 1923.

Appeal from District Court, Wood County; J. R. Warren, Judge.

Bill Ike Newton was convicted of the possession of intoxicating liquor for sale, and he appeals. Reversed and remanded.

R. E. Bozeman, of Quitman, and Jones & Jones, of Minneola, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Wood county of the possession of intoxicating liquor for the purpose of sale, and his punishment fixed at two years in the penitentiary.

Appellant moved to quash the indictment because the law under which same was drawn was in conflict with the Volstead Act (41 Stat. 305). The motion was properly overruled. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Appellant asked for a continuance because of the absence of three witnesses. The bill of exceptions shows that two of them appeared during the trial, and in our opinion the testimony of the third is not material.

By bill of exceptions appellant complains that while he was on the witness stand he was cross-examined to know if he had not sworn that one Dr. Faulk fixed up a bottle of liniment, and that the testimony was different from the statements in his application for continuance herein. There is nothing in the bill of exceptions showing the surroundings or conditions that would render this testimony inadmissible, and we cannot infer injury.

A question to appellant while on the witness stand if he had not been indicted for false swearing within the past six years was not open to objection that same related to a matter too remote. Bibb v. State, 86 Tex. Cr. R. 112, 215 S. W. 312.

Appellant was asked if he had not been charged in the justice court by a complaint for arson. Objection was made to this that the matter inquired about was too remote, and that five grand juries had met and adjourned since, and no bill of indictment had been returned. The objection was well taken. The testimony should not have been admitted. It is held by this court that, when a party is charged with a felony by complaint only, and sufficient time has elapsed for an indictment and none has been presented, proof that such complaint was made is not admissible to impeach him. King v. State, 67 Tex. Cr. R. 63, 148 S. W. 325; Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 362.

We cannot consider appellant's bills of exception Nos. 7 and 10 because there is nothing in either to show the truth of the facts stated solely as grounds of objection.

Proof of the fact that appellant wanted a state witness to drive him out in the country, and that he offered said witness a drink if he would take him, would be admissible. One of the facts necessary to sustain the charge of possession of liquor for purposes of sale is proof of the possession of such liquor. The offer of a drink would strongly suggest appellant's possession of the wherewithal to make good the offer.

Testimony that Tom Painter, now deceased, told a witness that the liquor in question was his, was properly rejected. Same was hearsay. Walsh v. State, 85 Tex. Cr. R. 208, 211 S. W. 241; Staton v. State (Tex. Cr. App.) 248 S. W. 359.

We know of no authority holding it proper to ask a witness the question if he knows the good or bad reputation of a party for being a violator of the liquor laws.

We think the court's definition of possession, as applicable to this offense, viz. that it meant having personal charge of and exercising the right of ownership and control of the liquor in question, presents no error.

Appellant excepted to the failure of the court to instruct the jury that state witness Rhodes was an accomplice, and also presented a special charge asking that the jury be informed that such law was applicable to his testimony. We...