De Young v. State , 274 S.W.2d 406 ( 1954 )

MORRISON, Judge.

The offense is the sale of whiskey in a dry area with a prior conviction of an offense of like character plead to enhance the punishment; the punishment, 60 days . in jail and a fine of $500.

Inspector Barba of the Liquor Control Board testified that he and Inspector Rakestraw went to the appellant’s place of business in the City of Hereford on the day in question, that Rakestraw waited outside, and that he went in and purchased a pint of whiskey from the appellant, for which he paid him $6.

Appellant and his wife testified that Bar-ba came to their store on the day in question and persuaded the appellant to deliver a pint of whiskey to him but that the appellant refused any pay therefor and only asked for its return in kind the next time Barba came through Hereford. Appellant admitted that he was the same individual who had been convicted in the prior case alleged.

The jury resolved the disputed issue of fact against the appellant, and we find the evidence sufficient to support the conviction.

Appellant has favored this Court with a quite lengthy brief in which he seeks to raise many questions. A discussion .of most of the bills of exception would add nothing to the jurisprudence of this State and will be omitted.

We do, however, find a plea of former jeopardy which will require some discussion. From the record it appears that this case was called for trial on January 12, 1954; that a jury was selected, the information read, and the appellant plead thereto, at which time the court was recessed for the noon hour; that all the participants returned after lunch save one juror; that after waiting until 4:45 p. m. for the absent juror to return, appellant filed a motion for mistrial, and at 5 :00 p. m. the jury was dismissed and the case continued.

It is apparent from the appellant’s motion for mistrial, from the plea of former jeopardy and the State answer thereto, both filed at a later date when the case was again called for trial, that the juror Ritter had learned of the illness of his daughter, had secured»the permission of the trial judge to leave, but that the trial court made no effort to secure the consent or agreement of appellant or his counsel before he gave his permission.

If the trial court in- fact excused the juror from further service in the case, then he committed error.' But such is not shown in the record before us. The trial court would have a right to determine the hours for hearing in his court, and, this being a misdemeanor case, he had a right to delay the proceedings in order that a juror might attend the bedside of a member of his family. From the fact that the judge waited around all afternoon, with nothing more in this record to enlighten us, it would appear that he expected the juror to return. So we see that the court had committed no error until he excused the jury at five o’clock. This he did in response'to appellant’s written motion for mistrial, and therefore the appellant, having specifically prayed for the action of the court about which he now seeks to complain, cannot successfully raise the question of former jeopardy. This we think is so fundamental as to not require the citation of authorities.

Finding ho reversible error, the judgment of the trial court is affirmed.