Peterson v. State

• Decision Date: 03 December 1902
• Citation: 70 S.W. 978
• Parties: PETERSON v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

70 S.W. 978

PETERSON v. STATE.^*

Court of Criminal Appeals of Texas.

December 3, 1902.

Appeal from Smith county court; Geo. W. Cross, Judge.

E. V. Peterson was convicted of violating the local option law, and appeals. Reversed.

Beaird & Potter, for appellant. J. A. Bulloch and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of violating the local option law, and fined $100, and given 60 days in the county jail.

What purports to be a statement of facts found in the record does not appear to have been approved by the judge, and consequently cannot be considered.

The first bill of exceptions shows that the state's witness Phillips was permitted to testify as follows: "On the night after I bought the whisky I saw defendant in Omen. I did not see him with any whisky. Don't know whether he had any there. I saw Sidney Wilson with whisky, and saw him take money for it. I got a half pint. Others got whisky. Several did get drunk. They were young men and schoolboys. I did not see any whisky until after defendant came. Don't know where it came from." Appellant objected to this testimony because it was not shown by Phillips' evidence, nor any other evidence, that defendant knew of, or was in any way connected with, said transaction, and because he was not charged and shown to be connected with the sale of whisky by Sidney Wilson, and because the same was irrelevant and immaterial to any issue in the case. The statement of facts in the bill, as certified by the judge, does not show that appellant was not present at the sale of this whisky, or that he may not have participated therein. The grounds of objection stated was not a certificate on the part of the judge that said grounds were true, as has been repeatedly held by this court. Other sales by appellant, or in which he was engaged, are admissible, as showing a system. Pitner v. State, 37 Tex. Cr. R. 268, 39 S. W. 662.

Bill No. 2 presents a question as to the action of the court in allowing the state to prove by Jas. Wilson, in cross-examination, that he had been told and understood that his brother Sidney Wilson had been indicted by the grand jury jointly with defendant for selling whisky, and that his brother was indicted by the grand jury for perjury growing out of his evidence before the grand jury about the facts of this and other local option cases in that vicinity, and that Sidney Wilson had fled the country. The state was also permitted to prove by Henry Burks that the grand jury which returned the indictment in this case had a great deal of trouble with the witnesses before the grand jury who were summoned to testify to violations of the local option law in that vicinity, and that they had a good deal of trouble to get them to tell the truth. The state was also permitted to prove by the witness Jno. Beaird that he was the attorney for defendant in this case, and that he represented him in a former trial, on the 7th of October, 1902, and that in the former case he (Beaird) did not call Jas. Wilson as a witness for defendant in said cause. This testimony was objected to by appellant on the ground that it was irrelevant and immaterial, and because appellant was shown in no wise to be connected with, or have anything to do with, said matters. And in addition it was objected to the last testimony of the witness Beaird that his...