Milam v. State , 66 Tex. Crim. 249 ( 1912 )

The appellant was prosecuted and convicted under articles 496 and 500 Penal Code (new), for unlawfully keeping and being concerned in keeping a certain house in which spirituous, vinous and malt liquors were sold and kept for sale, without first having obtained a license to retail such liquors, and his penalty fixed at a fine of $200 and twenty days in jail.

The appellant has only three bills of exceptions. By the first he shows that the State introduced Joe Davis and asked him this question: "On the 5th day of August what time in the day was it that you were there? A. Well, we went to work at 12 o'clock in the day and worked until 12 o'clock at night, and continued around the place from 12 o'clock in the day until 12 o'clock at night." The appellant objected to said question because it was leading and there was no allegation in the information of any offense having been committed on August 5. That is in substance the full of the bill.

The second is that the State introduced Robert Hamlin, as a witness and asked him, "How many times will you say you bought beer from him? A. Three times any way." Appellant objected because said question was leading and did not confine the answer of the witness to sales of beer alleged in the information in point of time. That is in substance the whole of this bill. The court in approving it qualified it by stating: "The State (witness) had previously stated that he had bought beer from defendant and the State asked this question to fix the number of times he had bought beer."

The other bill is that the State introduced the following testimony, to wit: Lee Thompson and Joe Davis were allowed to testify that a Federal liquor license was on wall at Minter's place, that said license was issued to one Brewer, and that same was a live license. Appellant objected and moved the court to strike the same from the records, unless the State showed defendant had some connection with said Federal license. The court overruled said objection and motion and admitted said evidence.

Clearly, neither of these bills are sufficient to require this court to pass upon the questions attempted to be raised. Conger v. State, 63 Tex.Crim. Rep., 140 S.W. 1112, and authorities there cited. However, the character of testimony here objected to was clearly admissible in this character of case. Tacchini v. State, 59 Tex. Crim. 55,126 S.W. 1139; Joliff v. State, 53 Tex. Crim. 61.

No bill of exceptions whatever was taken to the charge of the court or any part thereof. Neither did the appellant request any special charge to be given on any point. Therefore, the complaints of the charge, made first in the motion for new trial, can not be considered by us. Basquez v. State, 56 Tex. Crim. 329. Section 813, subdivision 6, White's Ann. Code Criminal Procedure, p. 533, for collated cases.

The court correctly charged in this case that the burden was on appellant to show he had a license. Lucio v. State,35 Tex. Crim. 320 and cases cited in section 1058 White's Code Criminal Procedure.

No bill of exceptions shows that any motion for continuance was had or overruled; hence, appellant's motion for new trial on this ground can not be considered.

The testimony is amply sufficient to have justified the verdict of the jury. In fact, from it we conclude no other verdict should have been rendered.

The ground for new trial in appellant's motion, because of newly discovered evidence, wholly fails to show any diligence whatever. Besides, the motion in attempting to set up the facts wholly fails to meet the requirements necessary to show that a new trial should have been granted on this account. Gray v. State, 65 Tex.Crim. Rep., 144 S.W. 284.

Affirmed.