Culver v. State , 94 Tex. Crim. 103 ( 1923 )

LATTIMORE, Judge.

Appellant was convicted in the District Court of Titus County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

By his bill of exceptions No. 1 appellant complains of the rejection of testimony of a witness by whom he sought to prove that another party had stated to witness that the apparatus testified about in this case belonged to him. We know of no authority which would hold such testimony removed from the domain of hearsay, and in our opinion it was inadmissible.

Appellant’s bill of exceptions No. 2 presents objection to proof on the part of the State of the fact that appellant had been convicted and given a suspended sentence upon his prosecution for a felony, and also the fact that appellant was now under bond for his appearance before the Federal court to answer for violating the Federal liquor law. It is well settled in this State that an appellant who becomes a witness in his own behalf may be asked with reference to his indictment or conviction of other felonies. Such testimony tends to affect his credibility. It is not affirmatively shown in the bill that the charges pending against appellant in the Federal court were not felonies. No error appears in said bill of exceptions.

Bill of exceptions No. 3 presents appellant’s further complaint of the rejection of evidence offered in his behalf which in our opinion is clearly hearsay.

There was no error in refusing a peremptory instruction of acquittal.

The bill of exceptions complaining of misconduct of the jury presents no error. This matter was set up in appellant’s motion for new trial and one witness testified upon the hearing before the trial court. The statements attributed to one of the jurors while the jury was in retirement were in the nature of a reply to argument made by another juror, and while said statements appear to reflect a matter not in testimony, they were of apparently little materiality and we would not deem the learned trial court in error in declining to grant a new trial because of same.

Finding no error in the record, an affirmance is ordered.

Affirmed.