Stewart v. State

• Decision Date: 06 May 1925
• Docket Number: (No. 9001.)
• Citation: 272 S.W. 202
• Parties: STEWART v. STATE.
• Court: Texas Court of Criminal Appeals

272 S.W. 202

STEWART v. STATE.

(No. 9001.)

Court of Criminal Appeals of Texas.

May 6, 1925.

Appeal from District Court, Johnson County; Irwin T. Ward, Judge.

Ott Stewart was convicted of selling intoxicating liquor, and appeals. Reversed and remanded.

W. E. Myres, of Fort Worth, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for selling intoxicating liquor. Punishment one year in the penitentiary.

Sheffield and Johnson testified that they went together to defendant's home, and that Sheffield purchased a quart of whisky, for which he paid defendant $3. Sheffield and Johnson both became intoxicated, and were arrested. The indictment places the date of the alleged sale as March 20th, and this is fixed as the correct date by the undisputed evidence. Defendant did not testify, but through the witnesses Sam Gibson, Essie Gibson, and Mrs. Frank Heater he interposed a defense of alibi. They testified that defendant, in company with Sam Gibson, Frank Heater, and Tom Heater, left his home in Johnson county on March 19th on a trip to Waxahachie, and did not return home until March 21st. After the issue was thus sharply drawn, the state proved by an officer that on March 21st he found near defendant's premises a still and five gallons of whisky. This evidence appears to have gone into the record without objection, but by a special charge the court was requested to instruct the jury to disregard it. This was refused. The learned trial judge was evidently disturbed as to just what place this evidence had in the case, for upon its introduction he verbally told the jury that defendant was upon trial charged with selling liquor, and that he was not being tried for manufacturing it or possessing it for purpose of sale, and that the evidence then being introduced must not be considered by them as evidence of guilt upon the charge of selling, but could be considered only as a "circumstance." The court did not undertake to advise the jury for what purpose such "circumstance" could be used by them. The evidence having gone in without objection, the refusal of the court to tell the jury to disregard it can scarcely be made a predicate for reversal, but in our judgment it had no place in the record for any purpose under the facts of this case. We are not able to see how proof that a still and whisky were found on the 21st could throw any light on whether defendant was at home on the 20th and sold whisky to a particular party.

Defendant did not testify, and in no way put his reputation in issue. While the officer was testifying, the county attorney asked him the following question:

"Do you know the general reputation of Ott Stewart, the defendant, in this community with reference to violating the liquor law?"

The court promptly sustained objections to the question, and directed the jury not to consider it. Was the question itself so obviously harmful as to call for a reversal? If defendant had put in issue his general reputation as a law-abiding citizen, the question asked would have been improper, for it was an inquiry about his reputation relative to the thing charged against him. McMullen v. State (Tex. Cr. App.) 265 S. W. 582; Burns v. State, 94 Tex. Cr. R. 533, 252 S. W. 509; Lovelady v. State, 95 Tex. Cr. R. 571, 255 S. W. 415. In the respect mentioned asking the question was more reprehensible, and the question itself more hurtful, than the one considered in Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029. If we had been writing in that case with reference to the matter now before us, the language could not have been more applicable. We quote:

"It is our opinion that the question was such a gross violation of all rules of procedure that it should not be necessary for appellant to request the court to instruct the jury that it was...