Wright v. State

• Decision Date: 25 October 1911
• Citation: 140 S.W. 1105
• Parties: WRIGHT v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 1105

WRIGHT v. STATE.

Court of Criminal Appeals of Texas.

October 25, 1911.

Rehearing Denied November 29, 1911.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Joe Wright was convicted of unlawfully selling intoxicating liquors, and he appeals. Affirmed.

Jones & Jones, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted, tried, and convicted of unlawfully selling intoxicating liquors in Wood county after prohibition had been properly carried, declared in force, etc., on March 12, 1910. The unlawful sale is alleged to have occurred on or about August 15, 1910.

The evidence by the state clearly and without question establishes the guilt of the appellant and makes a clear case against him. We deem it unnecessary to state the testimony.

The appellant made a motion to quash the indictment. The first ground was "because it was vague, uncertain, and indefinite, and charged no violation of the laws of the state." We think the indictment is clear, that there is no uncertainty about it and no indefiniteness, and that it does clearly charge a violation of the law.

The next ground to quash is that the indictment, which purports to allege that an election was held in Wood county to determine whether or not the sale of intoxicating liquors should be prohibited in said county "is vague, indefinite, and uncertain, in that it does not specifically charge the date of said election." The indictment does specifically charge that the election was properly held on or about March 12, 1910. There was no error in overruling the motion to quash.

There are several bills of exceptions in the record, several of which we will discuss together, as they present substantially the same character of question. The third bill shows that, while the defendant's witness Johnson was testifying in behalf of defendant, the district attorney asked him the following questions upon cross-examination: "Q. John, who has been talking to you trying to get you to leave the country and trying to get you to change your testimony in this case?" To which question and the answer the defendant objected because the same was immaterial and irrelevant, and could not be binding upon the defendant unless he had talked to the witness, or procured some one to talk to him, or tried to get him to leave the country, or procured some one to try to get witness to leave the country, and because defendant could not be bound by acts and conversations of some one else in trying to get witness to leave the country, and because same was not a proper question in any respect. The court overruled the objection and permitted the witness to testify, and he did testify, that no one had tried to get him to leave the country, and that no one had talked to him and tried to get him to change his testimony in the case.

Appellant's bill No. 4 is that, while this same witness was on the stand, the district attorney, on cross-examination, was permitted to ask him this question: "Is it not a fact that you was hid behind the bed at your home last night when the sheriff came out to subpœna you in this case, and is it not a fact that you had told members of your family to tell the officers you were not at home, if they came out there last night?" This question and the answer thereto was objected to because it was immaterial and irrelevant and inadmissible for any purpose, unless it should be first shown that the defendant had requested or advised the witness to hide from the officers and to tell his family to tell the officers that he was not at home in event they should come out after him, and because the testimony of the witness could not be discredited in this manner. The court overruled the objections, and the witness answered that he had not hid from the officers, and he had not told members of his family to tell the officers that he was not at home if they should come out there looking for him on that night.

Bill No. 6 shows that, while defendant's witness Pink Smith was testifying in behalf of defendant, he was asked by the district attorney on cross-examination this question: "Well, Pink, did you have any luck bootlegging that night (meaning the night Bill Shaw had testified he bought the whisky from defendant)?" To which question and the answer thereto the defendant objected for substantially the same reasons as to the last bill just above stated, and, in addition, because the question was calculated to make the jury believe that witness was a bootlegger himself. The court overruled the objections, and the witness testified that he did not try to bootleg any that night.

Bill No. 7 shows that, while this same witness Smith was testifying for defendant, the district attorney on cross-examination asked him this question: "Well, Pink, you had been selling or trading some whisky about that time had you not (meaning about the time this defendant is charged with selling whisky to Bill Shaw)?" Appellant objected to this question for substantially the same reasons as the last two bills above shown, and that it was highly prejudicial to the defendant, in that it assumed that the witness had been violating the local option law. The court overruled the objection, and the witness answered that he had not been trading or selling whisky about that time.

It will be seen by each of these bills that they are wholly insufficient, in that they do not show this court what the proof in the case was or anything else about it so as to show whether the questions and answers were inadmissible or not.

However, as each of the witnesses answered each question in the negative and favorable to himself and not unfavorable to the appellant, there was no error. Phillips v. State, 59 Tex. Cr. R. 535, 128 S. W. 1100.

The eighth, ninth, tenth, eleventh, twelfth, and fourteenth bills of exceptions complain of the action of the court in not permitting the appellant to show that the state's witness Bill Shaw, in the eighth bill, had been convicted of malicious mischief; in the ninth bill, of assault and battery; in the tenth, for unlawfully carrying a pistol; in the eleventh, for an assault and battery; in the twelfth, for carrying a pistol; and, in the fourteenth, that he had been a county convict on the county convict farm. These several questions were asked and the testimony sought to be introduced solely for the purpose of impeaching the witness. The state, when each of the questions were asked, made proper objections thereto. Each bill shows "that, if said witness was permitted to answer said question, defendant verily believed that he would swear that it was a fact (in the eighth bill as an example) that he had pleaded guilty to the offense of malicious mischief on April 5, 1902, and that if said witness denied that he had pleaded guilty in said court to said charge on said date the defendant would offer proof to show, as a matter of fact, that he did plead guilty to said charge in said court on that date." Some of the other bills bring the question of conviction to a later date: One in December, 1907; another on January 17, 1908; another in November, 1909; another in November, 1909; and the last, about working on the convict farm, "that he had been either working on the county convict farm or on the public roads, practically all the time during the past three years."

It will be seen by these several bills that the various misdemeanors asked about do not involve moral turpitude, and neither of the bills states that the witness would have sworn to any such thing, but indicates that he might deny it, in which event the defendant would offer independent separate proof to show the true facts.

The bills are not only insufficient on that account, but the witness could not be asked such questions and have been made to answer them in the affirmative if they were true for the purpose of impeaching him; and, besides, his answers would have been conclusive against the defendant, and he would not have been permitted to introduce any proof to contradict it. Fannin v. State, 51 Tex. Cr. R. 41, 100 S. W. 916, 10 L. R. A. (N. S.) 744, 123 Am. St. Rep. 874; Goode v. State, 32 Tex. Cr. R. 505, 24 S. W. 102; Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407. A great many other cases and textbooks could be cited to establish what we have laid down as the rule; but we deem it unnecessary.

The fifth bill of exceptions complains of the action of the court in not permitting appellant's witness Pink Smith to testify in effect that the appellant asked him (the witness) to go back with him and overtake Bill Shaw and John Johnson in order to make them give back his whisky; that this occurred soon after the defendant and witness had separated from said Shaw and Johnson and when he discovered that he had forgotten his bottle of whisky and left it in the buggy; the record showing that after all the parties had separated, at which meeting it was claimed by the state that a delivery of one of the bottles of whisky, which was sold by the appellant to the state's witness Bill Shaw, was made, which time was also several hours after the sale and delivery of another bottle of whisky by the appellant to the said state's witness the same night, the second bottle not having been delivered at the first delivery, because the appellant had to drive four or five miles to get...