Wade v. State , 75 Tex. Crim. 531 ( 1914 )

PBENDERGAST, Presiding Judge.

—Appellant was convicted for unlawfully making a sale of intoxicating liquors in prohibition territory,—a misdemeanor, and the lowest punishment assessed against him.

A proper complaint and information were filed against appellant January 19, 1914, alleging the sale of whisky on or about January 8, 1913. The only witness who testified to the sale could not definitely fix the date thereof, but stated that it was just after Mr. Bussell had bought the place from Mr. Sparks on which he, the witness, was living; that he made a crop on that place that year for Mr. Sparks; he could not remember what year Bussell bought that place from Sparks. The State introduced Bussell, who swore that the deed from Sparks to him and his brother was executed on January 1, 1913. Appellant, in cross-examination, sought to show by Mr. Bussell, and his testimony would have tended to show, so the bill states, that while the deed was dated January 1, 1912, the trade and bargain for the place was during the summer of 1911, and would tend to show that the sale occurred in 1911, and not in 1913. In other words, the testimony would have tended to show that the offense was clearly barred by the statute of limitation. In our opinion the court erred in refusing to permit this cross-examination of this witness.'

Appellant also sought to prove by said Sparks that he made the trade with Bussell to sell him the said place in the summer of 1911, although the deed was dated January 1, 1912. The court refused to permit this testimony. We think this testimony was also admissible and the court erred in excluding it.

Appellant also asked said State’s witness if he had not, the day before, told appellant’s attorney and two other persons that the date of the purchase of said whisky by him from appellant was in the fall after Mr. Bussell and his brother had purchased the Sparks place and before Christmas of that fall. This question was asked for the purpose of crossing the witness as to the time of the actual purchase by him of the whisky and was admissible therefor. If the witness had denied making such statement it would have laid the predicate for impeaching him which appellant also sought to do. The court should have permitted this question to have been asked and answered by the witness.

On cross-examination appellant asked said State’s witness if Harvey Wade had not approached him and persuaded him to file the complaint in this ease. Upon the State’s objecting to the question, appellant’s attorney explained to the court that he expected to show that this witness would so testify and then follow it up with testimony showing that said Harvey Wade was appellant’s enemy; that he was related to and friendly to said State’s witness and that he had induced the State’s witness to go before the grand jury and testify falsely against him. This question should have been permitted and the witness required to answer. It is always permissible to show the bias, prejudice, hostility, etc., of a witness against an appellant. See. 861, Branch’s Crim. Law.

Some other questions are raised, unnecessary to pass upon because, we take it, they will not occur upon another trial.

Appellant contends that the evidence is insufficient to sustain the verdict, because it would show that the offense, was barred; that the sale was made more than two years before the filing of the complaint and information. We do not pass upon that question. The evidence as introduced without that which was excluded, would sustain the verdict on this point. For the errors above noted, the judgment is reversed and the cause remanded.

Reversed and remanded.