Trinkle v. State

• Decision Date: 13 April 1910
• Citation: 127 S.W. 1060
• Parties: TRINKLE v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 1060

TRINKLE v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1910.

Rehearing Denied May 11, 1910.

Appeal from Upshur County Court; W. R. Stephens, Special Judge.

R. C. Trinkle was convicted of unlawfully selling intoxicants, and he appeals. Affirmed.

J. P. Hart, M. B. Briggs, and Warren & Briggs, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was charged by indictment with the sale of intoxicating liquors to one Joe Teffteller on the 15th day of February, 1909, in violation of law. At a trial had in the county court of Upshur county on July 1, 1909, he was convicted of the offense charged, and his punishment assessed at a fine of $75 and 30 days' confinement in the county jail.

1. Appellant filed a motion to quash the indictment, on the ground, in substance, that C. A. Green, who acted as foreman of the grand jury, and who signed the bill as such, was, at the time he was serving, a deputy sheriff of Upshur county, Tex., which position it was averred was an office of emolument, and that the office of foreman of the grand jury was also an office of emolument, and cannot be filled by the same party at the same time. The court overruled this motion to quash, and appellant excepted. The bill recites that the motion to quash was made, among other things, for the reasons stated, and it was shown by the testimony of L. A. Latch that he appointed Green deputy sheriff on the 24th day of November, 1906, that a commission was issued to him as such, and that he gave bond as such deputy, and has continued to act since that time. Mr. Latch says he was re-elected sheriff in November, 1908, but did not recommission Green as deputy sheriff, and that he is acting without a new deputation, and without any new bond. He stated, also, that Green had served some process, and, he presumed, charged the regular fees, but reasserts that he had not been reappointed since his election in 1908, but is serving under the original appointment, and that he has never resigned within his knowledge, and, further, that he had been acting as deputy sheriff since the grand jury adjourned at the last term of the district court and, further, that he was foreman of the grand jury which returned the bill in this case. If it were necessary for a decision of the case, we think there could be no doubt that Mr. Green was not in law a deputy sheriff at the time he served on the grand jury in Upshur county. His appointment had as certainly lapsed at the expiration of Mr. Latch's first term of office as that Mr. Latch himself must stand for re-election. Again, whatever might be the desirability of such practice, we are not prepared to hold in any event that, where no challenge had been made at the time to his right to sit as a member of the grand jury, we would not be authorized to quash the indictment because a deputy sheriff had acted as a member of the grand jury returning same. In fact, he was not, under the law, disqualified from serving as a member of the grand jury.

2. When the case was called for trial, appellant made an application for a continuance on account of the absence of a considerable number of witnesses. Among others, he sought the attendance of R. A. Adkins, Bob Carrington, and Wess White, by whom he expected to prove that they were acquainted with the general reputation of Joe Teffteller in the community in which he lived during the year 1908 for truth and veracity, and that such reputation is bad. It is well settled that, where the testimony sought could only be available to impeach a state's witness,...