Ross v. State

• Decision Date: 25 June 1913
• Citation: 159 S.W. 1063
• Parties: ROSS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1063

159 S.W. 1063

ROSS v. STATE.

Court of Criminal Appeals of Texas.

June 25, 1913.

Rehearing Denied October 22, 1913.

Appeal from District Court, Montague County; C. F. Spencer, Judge.

Frank Ross was convicted of unlawfully selling intoxicating liquor in a county in which prohibition was in force, and he appeals. Affirmed.

H. F. Weldon, of Bowie, W. S. Jameson, of Montague, and Seb F. Caldwell, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted for unlawfully selling intoxicating liquors in Montague county, after prohibition was in force therein, and his penalty fixed at two years in the penitentiary.

One ground of his motion for new trial is that the verdict is insufficient in that the only testimony against him is that of J. H. W. Jones, whose testimony is insufficient in that it shows him to be wholly unreliable and unworthy of belief and that he is a biased witness with no stability or reliability; his statement being wholly unreliable and contradictory and unworthy of credit. Said Jones, for the state, testified: That he lived 2½ miles west of Bowie and knew appellant well. That on Friday, November 15, 1912, he bought a pint of whisky from appellant and paid him $1 therefor. This occurred in a little house where appellant was in a part of the Burns Hotel, in Bowie, Montague county, Tex. That he could not say for certain where appellant got the whisky from at the time, but he thinks he got it out of a box or trunk, or something. His testimony as to his purchase from appellant of this bottle of whisky at this time and place was clear, positive, and pointed. He was then subjected to quite a long and severe cross-examination. He showed that when he bought this bottle of whisky on this Friday he took it home with him that evening; that before or about daylight the next morning (Saturday) he hauled a bale of seed cotton from his home to the gin in Bowie, and that his object in leaving his home as early as he did was to reach the gin in advance of others so as to get his cotton ginned as early as he could; that he took this bottle of whisky with him that he had purchased from appellant the day before and in going to town with the cotton he took a drink out of the bottle of whisky; that he continued to drink out of this bottle until 3 or 4 o'clock in the evening, when, as he expressed it, he got "gloriously drunk" on that whisky in the town of Bowie; that he was prosecuted for getting drunk on this occasion and paid a fine therefor. In the course of this cross-examination and about his getting drunk on this occasion, he testified that it did not take much whisky to make him drunk; "there were two parties; that each drank a dram out of the bottle; but I don't remember who they were. It is true that my memory is not as good as it once was; my memory is bad. As to whether it is not a fact that I cannot hardly trust my memory to these things, will say that sometimes there are things that come up—things that don't concern me to amount to anything—that I won't recollect 30 minutes afterwards; it depends on what they are. Now I told you I was drunk that day; at times I didn't know anything, but at times I did. It is true that I didn't know what I was doing part of the time that day." In his further cross-examination it was developed that some time along in the evening of that Saturday after he got drunk, and while he was drunk, the officers got after him and undertook to then find out from him where and from whom he had gotten the whisky which made him drunk. He tried to keep the officers from finding out these facts. Late in this Saturday evening he again went into appellant's place and then and there got another pint of whisky from appellant; that immediately after he did this and was leaving appellant's place the officer saw him, found this bottle of whisky on him, and the officer took it and then tasted it. The officer then accused him of buying this bottle of whisky from appellant and asked him if he did not buy it from appellant. He denied buying it from appellant. It is manifest from the evidence that this was one of appellant's schemes to throw the officers off and prevent them from believing or charging that he had sold this whisky to the witness, the object being to induce the witness, when the officers were pressing him, to testify that he did not buy this bottle of whisky from appellant, for either that day or the Monday following, it appears that they had him before an officer to induce him to tell whether or not he bought that bottle of whisky, and the witness, by his own statement, positively denied to them that he had bought that bottle of whisky from appellant but that appellant gave it to him or loaned it to him; and he adroitly or otherwise limited the investigation of himself at that time to that bottle of whisky, and he claims that the officer did not then ask him about the bottle of whisky that he did actually buy from appellant the day before (Friday). The evidence further develops that appellant was arrested that night (Saturday night) charged with this offense. It is further shown that the next night (Sunday night) some one sent a livery team from the town of Bowie to this witness' home, 2½ miles in the country, and had him that night (Sunday night) brought from his residence back to Bowie, and that he was taken to the livery stable, whence this conveyance then took him, and in effect he was turned over to the liveryman, C. B. Downs, who was one of appellant's two witnesses. There is no intimation any one representing the state sent for him. The circumstances repel that. Downs testified that some one, he claimed not to know who it was, just before Jones was delivered to him at his livery stable, phoned him that a party was expected there and as soon as he came to telephone the fact to Mr. H. F. Weldon, one of appellant's attorneys; and that when Jones arrived he (Downs) did telephone his arrival to appellant's said attorney and at once steered him to this attorney's office and either went with him, just preceded him, or just followed him to said office. Jones testified that, when they got him in this attorney's office that Sunday night, Mr. Weldon asked him if he bought a pint of whisky from appellant on Saturday the 16th, and wanted to know if he paid for or bought that particular pint of whisky; that he told Weldon that he did not buy nor pay for that pint of whisky; and that Weldon thereupon made out an affidavit to that effect, which he signed and swore to before Weldon. An affidavit was then produced and the witness, after examining it, admitted that that was his signature thereto. The affidavit is, after the state and county: "Before me, the undersigned authority, on this day personally appeared J. H. W. Jones, who after being by me duly sworn on his oath deposes and says that on yesterday, the 16th day of November, 1912, Frank Ross gave to him one pint bottle of whisky, or loaned it to him, and further this deponent says that he never paid the said Frank Ross any sum of money for same, or made him any promise of such payment [and that he has never in his life bought any intoxicating liquors from the said Frank Ross]." Jones then in his further cross-examination testified: "If that (the words in the last of the preceding affidavit above in brackets) was read to me I didn't hear it; I would have ordered that cut off right there; that last part that I never bought any whisky from him, because I know I had and I would not have signed it. I would rather had my right hand cut off than sign that. * * * I wouldn't have signed the statement if I would have understood it, if I would have known that last part was to it." He further shows in his testimony that he thinks he was not then drunk or under the influence of whisky; that he had drunk some that Sunday out of this last bottle that appellant had given him on Saturday. As to that last statement in the affidavit, in further cross-examination, he testified: "As to whether I will swear that Mr. Weldon didn't read this statement over to me just like you did, will say that if he did I didn't hear that last part. If he had read it I would not have signed it; I didn't have to do it that way and I wouldn't have signed it for $500. I wouldn't say that he didn't read it correctly, but if he did I didn't hear it. I could not see what he had written as I couldn't read." The witness further shows that when he went or was taken by Mr. Downs to Mr. Weldon's office on this occasion he didn't know whether Weldon or Downs first mentioned about the whisky to him. "I didn't know what they wanted when I got up there, and they had to start the conversation one of them, I think it was Mr. Weldon, said he wanted to see me about that pint of whisky that I got from Ross. I did not tell them that I had gotten a pint of whisky on Friday and that is the reason I said that I would not have signed the statement if that other had been in there. I had no former acquaintance with Mr. Weldon, but I knew him when I saw him. I never had any business with him."

Ed Arledge, one of appellant's two witnesses testified that he was in appellant's house in his room on Saturday evening November 16, 1912, when the witness Jones was there, and that he heard a conversation between Jones and appellant in which Jones got a bottle of whisky from appellant and offered to pay him for it and that appellant said, "No, Mr. Jones, I can't sell whisky. Did I ever sell you any whisky?" and that Jones answered, "No, you never did." This witness, on cross-examination, developed that this occurred some time between 4 and 6 o'clock on that Saturday evening, more particularly between 5 and 6 o'clock; that he went down there on a matter of business and when he got there appellant asked him to have a drink and set a bottle down on a trunk, but Arledge (the witness) then declined to drink and said he came after money. Thus...