Young v. State

• Decision Date: 21 June 1922
• Docket Number: (No. 7036.)
• Citation: 243 S.W. 472
• Parties: YOUNG v. STATE.
• Court: Texas Court of Criminal Appeals

243 S.W. 472

YOUNG v. STATE.

(No. 7036.)

Court of Criminal Appeals of Texas.

June 21, 1922.

Appeal from District Court, Coryell County; J. R. McClellan, Judge.

Willie Young was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

McClellan & Cross, of Gatesville, for appellant.

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

LATTIMORE, J.

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

The undisputed facts show that no one was present or participated in the transaction in which the prosecuting witness claimed to have purchased liquor from the appellant, save the two. There was a dance in the neighborhood, and these two young men were present, and during the night they left in a car and went some distance away. This occurred after prosecuting witness had expressed to appellant a desire for some whisky. This witness swore that on their return to the dance from said trip appellant had something under his coat. Shortly after they came back to the place of the dance appellant came to witness and told him that if he would look at a certain tree he would find the whisky. Said witness further stated that he went to the tree and found and appropriated the whisky, and that a week later, in the presence of several witnesses, he handed appellant $5 and stated to him then that it was for the whisky which he had bought.

Appellant presented a bill of exceptions complaining of the argument of the prosecution in closing the case to the jury, claiming that same was a reference to appellant's failure to testify. The bill of exceptions was qualified by the trial court, and in his qualification the court undertakes to say what was in fact stated in the argument of the prosecution. The court says that the full, exact, and complete expression of the district attorney was:

"Where is the testimony of the defendant in this case that he did not make the sale; where is the witness that testified that the defendant did not sell the whisky?"

We have carefully considered this statement of the district attorney, and in the light of the opinions of this court we are unable to conclude otherwise than that this was a reference to the failure of the defendant to testify. The authorities are numerous and plain. Moore v. State (Tex. Cr. App.) 237 S. W. 938; Ross v. State, 85 Tex. Cr. R. 340, 212 S. W. 167; Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578; Lankford v. State, 87 Tex. Cr. R. 435, 222 S. W. 567; Jemison v. State, 79 Tex. Cr. R. 313, 184 S. W. 807; Huff v. State (Tex. Cr. App.) 103 S. W. 394. It plainly appearing from the record that no one could have testified on behalf of appellant and presented his side of the controversy regarding the sale of said liquor, save himself, it seems to us that it must be conceded that the remarks of the state's attorney were susceptible of no other construction except that they called attention to the fact that appellant did not take the stand and make any explanation.

By motion to quash appellant questioned the sufficiency of the indictment. The charge laid therein was the "sale, barter, and exchange" of intoxicating liquor. The contention is that each of such acts constitutes a separate offense, and that the indictment is duplicitous. A loan, barter, or exchange of liquor is a sale. Keaton v. State, 36 Tex. Cr. R. 259, 38 S. W. 522; Stanley v. State, 43 Tex. Cr. R. 270, 64 S. W. 1051; Morris v. State, 64 Tex. Cr. R. 498, 142 S. W. 876; Barnes v. State (Tex. Cr. App.) 88 S. W. 804; Taggart v. State (Tex. Cr. App.) 97 S. W. 95; Sparks v. State (Tex. Cr. App.) 99 S. W. 546; Howard v. State, 72 Tex. Cr. R. 624, 163 S. W. 429. Such being the uniform holding of this court, the effect of the use of the words criticized in the instant indictment amounts to but a charge of a sale, and this contention is not upheld. This view of ours is not opposed to anything said by us in Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515; Cook v. State (Tex. Cr. App.) 236 S. W. 723; Smith v. State (Tex. Cr. App.) 234 S. W. 893; Vrazel v. State (Tex. Cr. App.) 233 S. W. 842.

The state's objection to bills of exception Nos. 3, 4, and 5 because in question and answer form is not tenable. The desire of appellant was to present to this court his complaint of the asking of hurtful questions, whose substantial repetition by the state is urged as injurious, and in such case the bill must set out the questions and answers complained of. Many of the matters contained in the questions asked about in said bills do not appear to us objectionable.

Appellant lived at the home of a Mr. Whatley. Mr. Whatley's son was on the stand testifying in behalf of the defense, and on cross-examination was asked many questions, among them being the following:

"Tuck Wolf stays down there most of the time, too, and is a crook too?"

To this question, upon objection, no answer was given.

The state's attorney then asked:

"The defendant is billed over in Bell county for violating the liquor law, isn't he?"

Objection to this question was sustained. Appellant was...