Wagner v. State
| Decision Date | 19 February 1908 |
| Citation | 109 S.W. 169 |
| Court | Texas Court of Criminal Appeals |
| Parties | WAGNER v. STATE. |
Appeal from Hunt County Court; J. W. Manning, Judge.
Jeff Wagner was convicted of selling intoxicating liquors in violation of the local option law, and he appeals. Affirmed.
H. D. Wood, for appellant. C. A. Leddy, Co. Atty., and F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was charged in the county court of Hunt county with the offense of selling intoxicating liquors in violation of the local option law. R. H. Smith testified directly and positively that some time in the month of October, 1907, he bought a pint of whisky from appellant. This was denied by appellant, and he interposed, among other defenses, that of an alibi.
Complaint is made that the court erred in permitting the county attorney to prove by the defendant, who became a witness in his own behalf, that about the 12th or 14th of October, 1907, he receipted and received from the express office a package weighing about 45 pounds, and which contained three gallons of whisky. The objections to this testimony were so general as to make it doubtful whether they could or should be considered. They are to the effect, in substance, that the evidence was immaterial and irrelevant, and because the state's testimony showed the sale to have occurred either Wednesday, Thursday, or Friday. If, however, they could be considered at all, a sufficient answer to the objections is that the same facts were proven on the trial by other witnesses and without objection. It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Walker v. State, 17 Tex. App. 16; Johnson v. State (Tex. Cr. App.) 26 S. W. 504; Stephens v. State (Tex. Cr. App.) 26 S. W. 728; Logan v. State, 17 Tex. App. 50; West v. State, 2 Tex. App. 460; and Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991. We believe, however, that this testimony, under any objection that could have been made, was admissible for this reason: The state was contending and proved that appellant had made a sale in prohibited territory of intoxicating liquors in violation of law. The defendant's testimony and contention was that no such sale had been made. With the issue thus sharply drawn, and with a view of supporting this contention, it was competent, as confirmatory of the testimony of this witness, to show that defendant had such an amount of whisky as forbids any reasonable presumption that he had it for his own immediate use, and therefore showing some motive or probability and occasion for appellant to desire to sell it, and, again, as a circumstance to show that he was in a position to make a sale and deliver whisky on such sale. It would clearly be admissible, where a defendant stood charged with a sale of intoxicating liquors, for him to show, by any evidence that would establish the fact, that he did not make such sale, that he had no whisky, that he had bought none, that none had been given to him, none sent or delivered to him, and, therefore, it was impracticable and unlikely, if, indeed, not impossible, for him to have sold whisky. There is no reason why a similar rule should not apply in prosecutions by the state. It cannot be that a different rule will apply in favor of defendant than that which should apply in favor of the state. Evidence is admitted to establish the truth of contested issues of fact, and is the means by which the truth of controversies are settled and established. To the average juror, seeking the truth, would it not have some probative force and effect, in a case where a sale was asserted in the evidence on one side and denied by the defendant on the other, to show the possession of whisky reasonably contemporaneous with the sale in such quantities as to raise a reasonable presumption that it was bought for sale, and not for use, and as further showing that the party charged with the offense had the ability to deliver the goods the sale of which is charged? There seems to be no escape in reason from this conclusion.
Again, it was contended there was error in permitting a witness to examine a statement made by him before the grand jury for the purpose of refreshing his recollection as to the date he was before the grand jury, with a view of fixing definitely the time of the alleged sale, and that same was antecedent to the indictment on which appellant was prosecuted. It appears from the record that the indictment was returned on the 18th day of October. The testimony of the witness was that the sale was made about the 10th of October. The nearness of the indictment to the sale left the matter in some doubt as to whether the sale was prior to...
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Ex Parte Myer
...or no application to criminal law, and especially it has none to the construction of any constitutional provision. In Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, this court, by Judge Ramsey himself, overruled several of the decisions wherein it had held a certain character of eviden......
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Leday v. State
...498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990). The rule has never been otherwise, so far as we know. In Wagner v. State, 53 Tex. Crim. 306, 307, 109 S.W. 169, 169 (1908), we said, "It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if......
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Harris v. State
...considered the bills there would be no such error as should or would result in a reversal of the case. In the case of Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, it was held by this court that "it is well settled in this state that the erroneous admission of testimony is not cause f......
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Martinez v. State, 20163.
...330, 296 S.W. 573; West v. State, 116 Tex.Cr.R. 468, 34 S.W.2d 253; Pence v. State, 110 Tex.Cr.R. 378, 9 S.W. 2d 348; Wagner v. State, 53 Tex.Cr.R. 306, 109 S.W. 169, and cases therein cited; McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d The third point in appellant's motion questions th......