Spain v. State

• Decision Date: 25 January 1911
• Citation: 133 S.W. 1055
• Parties: SPAIN v. STATE.
• Court: Texas Court of Criminal Appeals

133 S.W. 1055

SPAIN v. STATE.

Court of Criminal Appeals of Texas.

January 25, 1911.

Appeal from District Court, Limestone County; H. B. Daviss, Judge.

J. T. Spain was convicted on a charge of violating the local option law, and he appeals. Affirmed.

See, also, 128 S. W. 904.

John A. Mobley, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant was indicted, tried, and convicted in the district court of Limestone county, charged with violating the local option law, and sentenced to one year's confinement in the penitentiary.

1. The appellant complains that the court erred in overruling his application for a continuance. We have examined the record carefully, and we do not see that the testimony that appellant alleged could have been proven by the absent witness would have been material. In addition to this, the witness, for whose testimony the continuance was sought, testifies on the hearing of the motion for a new trial that she would not have so testified.

2. In bill of exception No. 2 appellant complains that the state was permitted to prove by the witness Henry Tatum that he had purchased whisky from appellant at another and different time than that alleged in the indictment. This court has held that, in prosecutions for the sale of intoxicating liquors, it is improper to admit proof of other and different sales. In this case, however, the judge trying the cause qualifies the bill in such way as to show that such testimony was not admitted, saying "the state did not offer to prove, nor did it prove, by the witness Tatum that he had purchased intoxicating liquor from defendant Spain at another and different time from that alleged in the indictment." The appellant accepts the bill with this qualification and files it, and he cannot now complain of the qualification. Briscoe v. State, 27 Tex. App. 193, 11 S. W. 113; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561.

3. The other error assigned: "The court erred in permitting the district attorney to testify and impeach the testimony of the witness Spruill, and in not charging the jury not to consider such testimony, except for the purpose of arriving at the credibility of the witness and the weight to be given his testimony"—is answered fully by the seventh paragraph of the court's charge, wherein a correct charge is given limiting the testimony.

The judgment is affirmed.