Matthews v. State , 80 Tex. Crim. 177 ( 1916 )

This is an appeal from a conviction for pursuing the occupation or business of selling intoxicating liquors in prohibition territory, with the lowest penalty assessed.

The evidence by the State's witnesses, which was evidently believed by the jury, was amply sufficient to sustain the conviction, although disputed on some material points by others. Appellant now attacks the State's principal witness vigorously as unworthy of belief. There is more or less testimony in the record supporting the testimony of this witness. It is evident this attack was also made in the court below. The jury and the trial judge heard his and all the other testimony and were more competent to judge of the truth of his testimony than this court can possibly be. They are by law made the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. We can not legally disturb the verdict.

With the proper preliminary and concluding allegations, the indictment, which was filed November 26, 1915, alleged, in substance, that on November 1, 1915, in Collin County, Texas, and after the qualified voters of said county had determined at an election held in accordance with the law that the sale of intoxicating liquors should be prohibited in said county and after the Commissioners Court of said county had made and entered an order to that effect and after said order had been published by the county judge as required by law, appellant did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, which law was then and there in full force and effect in said county, and while so engaged in said occupation and business, he did then and there unlawfully make five different sales of intoxicating liquors to J.W. Pierce and other sales to divers other persons to the grand jurors unknown; all of said sales being in violation of said law and within three years next preceding the filing of the indictment, and said business and occupation not then and there being permitted by law.

We think this indictment is sufficient under the statute and decisions, and that the cases cited by appellant, Mizell v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 125; Slack v. State, 61 Tex.Crim. Rep., 136 S.W. Rep., 1073; Stephens v. State, 63 Tex.Crim. Rep., 139 S.W. Rep., 1141; Leonard v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 632; and Mills v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 367, instead of being authority for holding said indictment bad, have the contrary effect. In this offense the date of the election and putting the law in force is immaterial further than to allege that the law was in force before the alleged offense was committed, which was done in this case. No authorities hold that in such an indictment it is necessary to give the orders for the prohibition election. The allegations made in this instance include all that was necessary on that point.

Mr. Smart, one of appellant's witnesses, testified that the general reputation of Mr. Pierce, the State's material witness, for truth and veracity was bad. On his cross-examination by the State this occurred: The county attorney asked him if he was a drinking man. He answered: "What do you call a drinking man?" The county attorney replied: "A man that drinks whisky whenever he can." Defendant objected, because it was on an immaterial matter and would not affect his credibility. The county attorney stated that it might show his sympathy, and the court stated he would not compel the witness to answer, but he might answer if he wanted to, or he might decline to answer. The witness then stated: "I don't know what you call a drinking man." The county attorney repeated in substance what he had stated before. The witness answered: "I don't drink whenever I can get it, but I might take a drink once in a while." We think this was not improper cross-examination under the circumstances of this case; but even if it was, the answer of the witness would show no injury to appellant.

The State contended that appellant on Saturdays went to Dallas on the interurban, returning that night with more or less whisky, and that he kept it from time to time in his room at his boarding house. The State's main witness had testified to finding several bottles of whisky in a box under appellant's bed in his room pending the time the State's witness testified appellant had made the respective sales to him. Appellant introduced his landlord, Mr. Hefner, who testified that he never saw, and in effect appellant never kept, any whisky in his room, and that he never found any therein. The State, in crossing this witness, undertook to show by him that appellant went to Dallas every Saturday night and returned therefrom to McKinney about midnight. Appellant objected to this character of examination of his landlord. However, the landlord testified he did not know whether he went to Dallas or not; in effect, he did not know where he went on Saturday nights. This testimony, like that passed upon just above, was proper cross-examination, and shows no injury to appellant. The answer of the witness failed to prove the State's contention on this point, and his bill presents no error. Hart v. State, 57 Tex.Crim. Rep.; Warthan v. State, 41 Tex. Crim. 385; Baker v. State, 45 Tex.Crim. Rep.; Harding v. State, 49 Tex.Crim. Rep.; Sweeney v. State, 65 Tex. Crim. 593, and cases cited.

His sixth bill, complaining of the question by the county attorney on cross-examination of his witness McCowan, presents no reversible error.

Appellant's seventh and eighth bills of exceptions are very lengthy. They contain some nineteen pages of typewritten questions and answers of appellant himself on cross-examination by the State, and each winds up with an objection to the court's refusal to permit him to have two witnesses testify, respectively, to his good general reputation for truth and veracity. The State objected to these witnesses so testifying because his said general reputation was not an issue. The court sustained the objection, stating that he would not permit the defendant to introduce evidence to sustain his reputation for truth and veracity unless such reputation had been attacked. We think that neither bill shows that the witness was impeached, or attempted to be impeached, in such a way as would authorize him to introduce witnesses to establish his reputation in the respect mentioned. The rule is well established that if the State had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof, but until such contingency arises, the fact that he gives testimony disputing that offered by the State would make no such testimony admissible. Pettis v. State, 68 Tex. Crim. 221; Lacy v. State, 63 Tex.Crim. Rep.; Allen v. State,64 Tex. Crim. 225; Williams v. State, 67 Tex. Crim. 287; Downing v. State, 61 Tex.Crim. Rep.; Wisnoski v. State, 68 Tex.Crim. Rep., 153 S.W. Rep., 316; McCue vs. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 280, and many other cases collated in 1 Branch's Ann. P.C., p. 115.

As stated above, the State's main witness had testified to finding liquor stored in appellant's room under his bed pending the time he testified appellant made the sales to him alleged in the indictment. Appellant not only denied this, but he introduced Mr. Heffner, his landlord, who on direct examination supported appellant in his testimony on this point. The State then took him on cross-examination on this point, and the witness testified that he had seen five pints of whisky in his room on the very day he was rearrested; the court qualifying the bill as follows:

"The witness W.A. Heffner was introduced by the defendant and defendant's attorney proved by him that Mr. Matthews, the defendant, was rooming at his house when he was arrested on the charge of pursuing the occupation of selling intoxicating liquor and continued to room there after he made bond and was rooming there when he was surrendered by his bondsmen, and then proved by said witness that he had seen no whisky in said Matthews' room but one time during the entire time that Matthews was at his house and that was during Christmas, and that was something like a half pint with which they made eggnog.

"After the defendant had elicited on direct examination from the said witness the facts as above stated the testimony that he had only seen whisky in defendant's room one time and that was the half pint Christmas, the court then permitted the State to prove by said defendant's witness on cross-examination that he had seen five pints in his room on the very day that defendant was rearrested." We think this was legitimate cross-examination of this witness under the circumstances, and as qualified by the court, his bill presents no error.

We have not discussed each of appellant's bills of exceptions, though we have considered them all. None of them present any reversible error.

The judgment is affirmed.

Affirmed.