Thomas v. State

• Decision Date: 07 April 1926
• Docket Number: (No. 9531.)
• Citation: 282 S.W. 237
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

282 S.W. 237

THOMAS v. STATE.

(No. 9531.)

Court of Criminal Appeals of Texas.

April 7, 1926.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Bud Thomas was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Sid Crumpton, of Texarkana, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J.

Conviction in district court of Bowie county of selling intoxicating liquor; punishment fixed at two years in the penitentiary.

There is no question of the fact that a sale of whisky was made in the nighttime about the first of November to three young men who drove out along the highway between Sulphur river and Texarkana to a point where a schoolhouse stood near the road, from which they turned and went to a house "right behind the schoolhouse," stopped, and holloed for "Mr. Thomas," and a man came out and asked them what they wanted, and they asked him if he had any. He said he thought so, and sold them five quarts of whisky. They said the house was on the left of the road coming toward Texarkana, but they could not identify appellant as the man who sold them the whisky, and the case was submitted on the law of circumstantial evidence. Some one had told them if they would go there, they could get it, and on this information they went. They said the house where they got the whisky was two or three miles from Sulphur, etc., but they had never been there before.

The state introduced Stone and Austin as witnesses. Stone said appellant lived out on the highway between Sulphur and Texarkana, about two and a half miles from Sulphur, on the left of the road going toward Texarkana; that there was a schoolhouse there, and appellant lived "right behind the schoolhouse." He further said on November 8th he and Austin went to appellant's place at night and he sold them whisky. In his charge the learned trial judge told the jury they could consider this testimony of Stone and Austin for no other purpose than as showing the identity of the appellant as the seller of the whisky charged in this case, if they believed it did so show. The admissibility of this testimony is challenged by bills of exception Nos. 2 and 3, and in a special charge asked instructing the jury not to consider such testimony, the refusal of which was excepted to.

Among other things recognized by all the authorities as furnishing exceptions to the general rule rejecting testimony of extraneous crimes appear intent, identity, and system. Many authorities are cited in section 166 of Mr. Branch's Annotated P. C., sustaining the proposition that, when these questions are in issue, proof of other offenses is admissible, if same be relevant. When the charge is selling liquor, proof of possession of a quantity thereof reasonably near the date of the alleged sale is admissible. Wagner v. State, 109 S. W. 169, 53 Tex. Cr. R. 306. Witness Stone said appellant had the liquor in a ten-gallon can and sold him four...