Hughey v. State , 98 Tex. Crim. 413 ( 1924 )

Conviction is for the manufacture of intoxicating liquor, punishment being three years in the penitentiary.

The State's evidence is positive from the witness N.V. Lairemore that appellant, Mike Hughey, B.J. Stevens and Slim Smith were seen operating a still in the manufacture of whisky. While Lairemore was testifying counsel for appellant asked him if he did not know that his sister had made a complaint against Mike Hughey charging him with being the father of her child. Witness answered this question in the negative. He was then asked if he did not know that she made complaint against seventeen other men. Objection was interposed by the State, and appellants counsel stated that he expected to further show that no complaint was ever made against appellant or his brother Mike Hughey for manufacturing whisky until after witness' sister was arrested as a prostitute. In ruling upon the objection the court stated that appellant could make proof of any complaint in regard to Stephens or either of the Hugheys. Appellant's complaint is that by such ruling he was deprived of an opportunity to show the animus of the witness. We construe the bill as contrary to such contention. The effect of the ruling was to give counsel permission to make proof of any complaint for any charge filed by witness' sister against appellant or any of the parties alleged to have been acting with him in making the whisky, but to exclude a general inquiry about complaints claimed to have been lodged by her against other parties for alleged offenses in no way connected with the case upon trial. We perceive no error in the court's conduct in this respect.

In view of the court's explanation to bill of exception number two no error is presented. Objection was interposed by the State that a certain question propounded by appellant's counsel called for a repetition of matters already testified to by a witness. The court sustained the objection, stating in the bill that the question had already been twice propounded to witness; examination of the pages of the statement of facts to which we are referred by the court in his explanation to the bill verifies the qualification, it appearing that witness had already twice covered the subject about which he was again interrogated. No abuse of the court's discretion in the matter complained of appears.

One ground of the motion for new trial is newly discovered evidence. It occurs to us that the evidence claimed to have been newly discovered may be properly classed as indirect impeaching evidence only. Furthermore, the order overruling the motion recites that evidence was heard thereon, and no evidence thus submitted is brought to this court either by bill of exception or statement of facts. In view of this state of the record and the recital in the order we would assume the court's action therein was correct. Harcrow v. State, 261 S.W. 1046; McKinzie v. State,260 S.W. 585; Cade v. State, 258 S.W. 484; Hicks v. State,261 S.W. 579; Rumfield v. State, ____.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING.