Brewster v. State ( 1905 )

CORNER, Chief Justice.

The State, through her proper officer, instituted this suit against appellant H. D. Brewster and the sureties on his retail liquor dealer’s bond, alleging four infractions thereof, viz: three separate sales of intoxicating liquors to Boley Langley, a minor, and by permitting said minor to enter and remain on the premises where the sales occurred on the dates specified in the petition. The prayer was for a recovery of $500 for each breach of the bond charged, aggregating two thousand dollars. The trial resulted in a verdict and judgment for appellee in the sum of $500, because of, using the language of the verdict, “one infraction” of the bond “for permitting a minor to enter and remain.”

It is undisputed that the appellant named was engaged in the business of a retail liquor dealer in Mineral Wells, Texas, as alleged, and as such gave the statutory bond declared upon with the other appellants as sureties. It seems also quite conclusive that Boley Langley was a minor, as alleged, and the jury’s verdict to the effect that he was permitted to enter and remain in appellant’s house or place of business is amply sustained by the evidence, so that the material questions presented on this appeal relate to matters of procedure on the trial.

It is first complained that the court erred in proceeding with the trial after having sustained appellant’s' motion to quash the service of the citation upon the sureties sued. No statement follows this assignment, and we would be authorized to disregard it. Besides, an examination of the record fails to disclose any error in the action complained of. It is true the court appears by proper order to have sustained a motion to quash the service mentioned, but the order likewise granted the State permission to have the sheriff’s return amended. No bill of exception appears to have been taken at the time, and for aught that appears to the contrary the amendment was in fact made before the conclusion of the trial. The record also discloses the fact that the sureties affected by the defective sheriff’s return appeared, together with appellant, by an original answer filed September 6, 1904, which on its face seems to have been presented prior to the motion. At least we are unable to say that the motion to quash was presented before the answer in due order of pleading, the motion itself not appearing of record.

In the second assignment appellant complains of the action of the court in overruling their application for continuance. The application to continue appears to have been made because of the absence of some ten witnesses. As to some of these witnesses the diligence shown was insufficient, and the testimony of all of them, as set out in the bill of exceptions, appears to be immaterial in the light of the evidence on the trial and of the verdict of the jury. By the greater number of the absent witnesses appellants desired to prove that Boley Langley at the time of the alleged infraction of appellant’s bond presented the general appearance of a person over the age of twenty-one years. Numerous witnesses testified on the trial to this effect, and the jury evidently gave appellants the full benefit thereof, in that the verdict sustained appellant Brewster’s plea of the tenor that, if sales had been made to Boley Langley as alleged in appellee’s petition, they were made in good faith, believing him to be at the time over age. Hiram Langley, the father of Boley Langley, Joe Langley, a brother and E. Medline all testified positively to the age of Boley Langley, and unmistakably fixed his status as that of a minor at the date of the sales established by the evidence. The fact, therefore, that Boley Langley presented the appearance of one of lawful age was immaterial upon the issue found against appellants. See Cox v. Thompson, 32 Texas Civ. App., 572.

The third assignment points out no error, and the fourth assignment is substantially disposed of in what we have said in disposing of the second.

The fifth, sixth and seventh assignments present the question of collusion, which can not bind the State.

The action of the court in refusing to exclude the answer of Frank Langley, that he had been in jail on the charge of unlawfully carrying a pistol on or about his person, seems entirely nonprejudicial. Frank Langley testified for appellants to the effect that in his “best judgment” Boley Langley was twenty-one or twenty-two years old. We think it evident from his whole statement that he had no accurate knowledge on the subject, and that he was but expressing his mere opinion of Boley Langley’s age, and in the light of the unmistakable character of the testimony hereinbefore referred to that fixes Boley Langley’s age, we think the ruling complained of, if erroneous, is entirely immaterial.

The error complained of in the tenth assignment is likewise harmless. The witness Bobbins in fact was permitted to give an explanation of his reason for desiring “to see the defendants get out of this suit,” and the exclusion of the additional explanation that he so desired because he knew “the Langleys to be a worthless crowd and believed these suits to be a put up job,” which was excluded by the court, could have had no effect beneficial to appellants. Such reason certainly constituted no defense to the suit. However “worthless” the Langleys may have been, on proof of the facts alleged in the State’s petition, it was the duty of the jury to render the verdict they did, and we fail to find even a contention that the proof failed to show that Boley Langley was not permitted to enter and remain in appellant’s place of business within the meaning of the law.

In the eleventh assignment complaint is made that the district attorney was permitted to state his reason for failing to put Mrs. Hiram Langley, the mother of the minor, upon the stand. The proposition asserted is, in effect, that he (the district attorney) was not qualified as an expert, and did not state the facts upon which he predicated his opinion that she was “mentally unsound.” While the mental state of Mrs. Langley was not in issue, the record suggests that this testimony was permitted to meet the real or possible contention in behalf of appellants that the mother best- knew the age of Boley Langley. If so, it was competent for the State to rebut any possible unfavorable inference that might be drawn from the failure to put the mother upon the stand. At all events, the ruling seems harmless.

We think the court’s charge not subject to the objections urged thereto, and that it sufficiently presents the rule relating to the burden of proof.

The assignment that “the court erred in refusing to grant defendants ■ a new trial because the verdict of the jury is contrary to the law and evidence, as complained of in the twenty-eighth ground of defendant’s motion for a new trial,” is too general for consideration, particularly in view of the fact that the twenty-eighth ground of the motion- is not set out, and that in the statement in support of the assignment we are referred to the “statement, of facts, Tr. pp. 9 to 63.”

We conclude that no--reversible error has been presented; that the evidence supports the verdict and judgment, and that the judgment should be affirmed.

Affirmed.