Venn v. State

• Decision Date: 12 January 1916
• Docket Number: (No. 3897.)
• Citation: 182 S.W. 315
• Parties: VENN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 315

182 S.W. 315

VENN v. STATE.

(No. 3897.)

Court of Criminal Appeals of Texas.

January 12, 1916.

Appeal from Upshur County Court; W. H. McClelland, Judge.

Willie Venn was convicted of violating the local option law, and appeals. Reversed and remanded.

Sanders & Florence, of Gilmer, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days' imprisonment in the county jail.

He introduced testimony showing clearly an alibi. The state's evidence was made by a witness who stated that he had bought whisky from appellant, at Union Grove about 8:30 or 9 o'clock in the morning. Appellant proved by several witnesses that at that time he was at another place several miles distant, some of whom went with him from his home to the point designated, and by other witnesses who were on the ground at that point. There seems to have been picnic occasions at both points; these places being three or four miles apart. Appellant's alibi covers practically from 8 o'clock in the morning until 4 o'clock in the evening. The matter was properly presented, and special requested instructions presenting the alibi were refused. The matter is timely and properly reserved and presented. This was error. This was his main defense. Of course, the other matter was in the record that he did not sell because of the fact he was not at the place where the sale is said to have occurred. This charge should have been given.

A bill of exceptions was reserved to the remarks of the county attorney in his closing argument. This should not have occurred, and will not, we suppose, upon another trial, and is therefore not discussed.

Another bill recites that while Ferrell was testifying he stated that he was foreman of the grand jury, and that Weaver, the state's purchasing witness, testified before that body; that the grand jury was trying to induce him to tell about buying whisky from bootleggers and if he had bought from certain parties. Witness first stated he did not remember. Finally, after being pressed, he said he bought whisky, but would not tell from whom. The witness was then carried before the district judge and finally sent to jail. After spending two days and nights in jail, he was brought before the grand jury, and then told of several instances where he had bought whisky. These sales were by several different persons, one of which was the quart he bought from appellant at Union Grove. The witness says:

"We did not force him or lead him to tell it. In fact, I was surprised when I learned he had bought whisky from the defendant. We were not inquiring or him of sales made by the defendant."

Various and sundry objections were urged to all this. This testimony, we think, was not admissible. This witness could not be corroborated in this manner. This question was suggested by the bill of exceptions. Upon another trial this testimony should not be permitted to go to the jury.

Another bill recites Mr. Bennett testified there was a great deal of drinking and drunkenness in and around Union Grove that day, meaning the time and place of the alleged sale. Various objections were urged to this. The court approves this with the explanation that the testimony of Ben White with reference to the same matter had been adduced by defendant as well as defendant in direct examination of the witness Bennett, and all this matter should...