Whitten v. State

• Decision Date: 11 April 1923
• Docket Number: (No. 7456.)
• Citation: 252 S.W. 526
• Parties: WHITTEN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 526

252 S.W. 526

WHITTEN v. STATE.

(No. 7456.)

Court of Criminal Appeals of Texas.

April 11, 1923.

Rehearing Denied June 20, 1923.

Appeal from District Court, Red River County; Austin S. Dodd, Special Judge.

Jess Whitten was convicted of selling intoxicating liquor, and appeals. Affirmed.

T. T. Thompson, of Clarksville, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Red River county of selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of one year.

The charge in the indictment was the sale of intoxicating liquor to one Jacobs. Jacobs testified that on the occasion in question he bought from appellant a quart of whisky some time in March or April, 1922.

Appellant has several bills of exception; the first complaining of the court's refusal to quash the indictment, his motion being based on the fact that said instrument failed to negative the exceptions contained in the Dean law (Vernon's Ann. Pen. Code Supp. 1922, art. 588 1/4 et seq.). This indictment was returned subsequent to the amendment of the Dean law which took said exceptions out of the enacting section of the law, since which time this court has held it not necessary to negative said exceptions. Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472. There are many other decisions of this court to the same effect. We desire to commend the action of the learned trial judge in the careful qualifications placed by him upon the bills of exception.

Appellant presents three bills of exception to the testimony of state witness Artis. In one it is complained that said witness was permitted to testify that, while he did not know what was in the fruit jar involved in the transaction between appellant and Jacobs, it looked like white corn whisky. It appears from the court's qualification that this witness was testifying in rebuttal, and after the appellant had denied making a sale of any whisky to state witness Jacobs. Jacobs had given positive testimony to the effect that he had purchased white corn whisky from appellant in a fruit jar and that Artis, the witness above mentioned, was present. We think it permissible for Artis, upon rebuttal on behalf of the state, to say that what was in the fruit jar looked like corn whisky.

The bill complaining of the fact that Artis testified that he was a married man and had two small children is so qualified by the trial court as to appear that the testimony came in practically without objection. The other bill complaining of the testimony of this witness presents appellant's objection to his stating that he saw defendant give witness Jacobs $2.50. The qualification to this bill sets forth that Artis testified that he saw the money pass between appellant and Jacobs, and that the money was in greenbacks, as witness remembered it, and that said witness did not testify at all that the money passed from the defendant to Jacobs, but that all the money passed from Jacobs to the defendant.

It is complained by another bill of exceptions that the court refused to instruct the jury that before they could convict they must find that the intoxicating liquor was not sold for mechanical, etc., purposes. Since...