Spann v. State

• Decision Date: 08 October 1930
• Docket Number: No. 13487.,13487.
• Citation: 32 S.W.2d 455
• Parties: SPANN v. STATE.
• Court: Texas Court of Criminal Appeals

32 S.W.2d 455

SPANN v. STATE.

No. 13487.

Court of Criminal Appeals of Texas.

October 8, 1930.

Rehearing Denied November 19, 1930.

Commissioners' Decision.

Appeal from District Court, Lamar County; George P. Blackburn, Judge.

Arthur Spann was convicted of selling intoxicating liquor, and he appeals.

Affirmed.

R. E. Eubank and Chas. Roach, both of Paris, for appellant.

A. A. Dawson, State's Atty., of Canton, for, the State.

CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for three years.

State's witness, Aubrey Wright, testified that appellant sold him a half gallon of whisky. It appears that Wright called appellant over the telephone in the presence of some officers and told him he wanted to buy a half gallon of whisky. According to Wright's testimony, which was undisputed, appellant replied that he would sell him the whisky. One of the officers carried Wright to his (Wright's) home, and the other officers followed them. Wright got out of the car about a block from his home. In a few moments, according to Wright's testimony, appellant appeared, drove his automobile into Wright's yard, and delivered the whisky, for which Wright paid him $3. While the officers, according to their testimony, did not see appellant deliver the whisky to Wright, they saw him drive into the yard. This occurred 30 or 40 minutes after Wright had the telephone conversation with appellant. Immediately after appellant drove into Wright's yard, the officers entered the house and found a half gallon of whisky. Appellant introduced no testimony.

It appears from bill of exception No. 2 that appellant objected to the use by the state of the witness Wright on the ground that he was an unpardoned convict. In support of the objection, appellant offered a certified copy of the judgment of conviction showing that the witness had been convicted in the state of Oklahoma of grand larceny. The copy did not appear to be in due and legal form, and the court declined to permit it to be introduced. On cross-examination, the witness testified that he was the same person who had been convicted for grand larceny in Oklahoma, and that he had served a term in the penitentiary. We are unable to determine from the bill whether the conviction occurred prior to the enactment of chapter 27, Acts of the Thirty-Ninth Legislature (1925). In any event, the court, In the first instance, properly declined to disqualify the witness; the record of conviction not being correctly authenticated. After it developed on cross-examination that the witness had been convicted of grand larceny in the state of Oklahoma, appellant made no motion to exclude his testimony, nor did he then in any other way raise the question of the competency of the witness. It may be added that the state at no time waived the objection to the disqualifying proof.

It appears from bill of exception No. 4 that the district attorney asked state's witness Aubrey Wright why he had not been in attendance upon court at its last term. Appellant objected to the question on the ground it was prejudicial. The court stated that the witness would not be permitted to answer the question unless it was shown that appellant had something to do with keeping the witness from appearing. Upon the promise of the district attorney that appellant's connection with the matter would be shown, the objection was overruled. The witness testified without further objection that he had remained away from court on account of fear; that appellant's attorney and two other persons came to him in appellant's absence and told him it would be a good idea for him not to come to court; that thereafter appellant came to him and took him in his (appellant's) automobile to Wichita Falls, telling him not to come back to court until the trial was over. It was proper for the state to show that appellant was responsible for the absence of the witness. Branch's Annotated Penal Code, § 162. Hence the fact that appellant carried the witness to Wichita Falls and told him not to return until the trial was over was properly received in evidence. If the endeavor of appellant's attorney and others to prevent the appearance of the witness was not shown to have been authorized by appellant, it was...