Ross v. State , 71 Tex. Crim. 493 ( 1913 )

Appellant was convicted for unlawfully selling intoxicating liquors in Montague County, after prohibition was in force therein, and his penalty fixed at two years in the penitentiary.

One ground of his motion for new trial is that the verdict is insufficient in that the only testimony against him is that of J.H.W. Jones, whose testimony is insufficient in that it shows him to be wholly unreliable and unworthy of belief and that he is a biased witness with no stability or reliability, his statement being wholly unreliable and contradictory and unworthy of credit.

Said Jones, for the State, testified that he lived two and a half miles west of Bowie and knew appellant well; that on Friday November 15, 1912, he bought a pint of whisky from appellant and paid him $1 therefor. This occurred in a little house where appellant was, in a part of the Burns Hotel in Bowie, Montague County, Texas; that he could not say for certain where appellant got the whisky from at the time, but he thinks he got it out of a box or trunk, or something. His testimony as to his purchase from appellant of this bottle of whisky at this time and place was clear, positive and pointed.

He was then subjected to quite a long and severe cross-examination. He showed that when he bought this bottle of whisky on this Friday he took it home with him that evening; that before, or about daylight the next morning, Saturday, he hauled a bale of seed cotton from his home to the gin in Bowie, and that his object in leaving his home as early as he did was to reach the gin in advance of others so as to get his cotton ginned as early as he could; that he took this bottle of whisky with him that he had purchased from appellant the day before, and in going to town with the cotton he took a drink out of the bottle of whisky; that he continued to drink out of this bottle until 3 or 4 o'clock in the evening, when, as he expressed it, he got "gloriously drunk" on that whisky in the town of Bowie; that he was prosecuted for getting drunk on this occasion and paid a fine therefor. In the course of this cross-examination, and about his getting drunk on this occasion, he testified that it didn't take much whisky to get him drunk. "There were two parties that each drank a dram out of the bottle, but I don't remember who they were. It is true that my memory is not as good as it once was; my memory is bad. As to whether it is not a fact that I can not hardly trust my memory to these things, will say that sometimes there are things that come up, — things that don't concern me to amount to anything, that I won't recollect thirty minutes afterwards, — it depends on what they are. Now I told you I was drunk that day, — at times I didn't know anything, but at times I did. It is true that I didn't know what I was doing part of the time that day."

In his further cross-examination it was developed that, sometime along in the evening of that Saturday after he got drunk and while he was drunk, the officers got after him and undertook to then find out from him where and from whom he had gotten the whisky which made him drunk. He tried to keep the officers from finding out these facts. Late in this Saturday evening he again went into appellant's place and then and there got another pint of whisky from appellant; that immediately after he did this and was leaving appellant's place the officer saw him, found this bottle of whisky on him and the officer took it and then tasted it. The officer then accused him of buying this bottle of whisky from appellant and asked him if he did not buy it from appellant. He denied buying it from appellant. It is manifest from the evidence that this was one of appellant's schemes to throw the officers off and prevent them from believing or charging that he had sold this whisky to the witness, the object being to induce the witness when the officers were pressing him, to testify that he did not buy this bottle of whisky from appellant; for either that day or the Monday following, it appears that they had him before an officer to induce him to tell whether or not he boughtthat bottle of whisky, and the witness, by his own statement, positively denied to them that he had bought that bottle of whisky from appellant, but that appellant gave it to him orloaned it to him; and he adroitly, or otherwise, limited the investigation of himself at that time to that bottle of whisky, and he claims that the officer did not then ask him about the bottle of whisky that he did actually buy from appellant the daybefore, Friday. The evidence further develops that appellant was arrested that night, Saturday night, charged with this offense. It is further shown that the next night, Sunday night, some one sent a livery team from the town of Bowie to this witness' home, two and a half miles in the country, and had him, that night, Sunday night, brought from his residence back to Bowie, and that he was taken to the livery stable whence this conveyance then took him, and in effect he was turned over to the liveryman, C.B. Downs, who was one of appellant's two witnesses. There is no intimation any one representing the State sent for him. The circumstances repel that. Downs testified that some one, he claimed not to know who it was, just before Jones was delivered to him at his livery stable, 'phoned him that a party was expected there and as soon as he came to telephone the fact to Mr. H.F. Weldon, one of appellant's attorneys; and that when Jones arrived he, Downs, did telephone his arrival to appellant's said attorney, and at once steered him to this attorney's office and either went with him, just preceded him, or just followed him to said office. Jones testified that when they got him in this attorney's office that Sunday night, that Mr. Weldon asked him if he bought a pint of whisky from appellant on Saturday the 16th, and wanted to know if he paid for or bought that particular pint of whisky; that he told Weldon that he did not buy, nor pay for that pint of whisky, and that Weldon thereupon made out an affidavit to that effect which he signed and swore to before Weldon. An affidavit was then produced and the witness, after examining it, admitted that that was his signature thereto. The affidavit is, after the State and County: "Before me, the undersigned authority, on this day personally appeared J.H.W. Jones, who after being by me duly sworn on his oath deposes and says that on yesterday, the 16th day of November, 1912, Frank Ross gave to him one pint bottle of whisky, or loaned it to him, and futher this deponent says that he never paid the said Frank Ross any sum of money for same, or made him any promise of such payment (and that he has never in his life bought any intoxicating liquors from the said Frank Ross.)" Jones then in his further cross-examination, testified: "If that (the words in the last preceding affidavit above in brackets) was read to me I didn't hear it; I would have ordered that cut off right there, — that last part that I never bought any whisky from him, because I know I had and I would not have signed it. I would rather have had my right hand cut off than sign that. * * * I wouldn't have signed the statement if I would have understood it, if I would have known that last part was to it." He further shows in his testimony that he thinks he was not then drunk or under the influence of whisky; that he had drunk some that Sunday out of this last bottle that appellant had given him on Saturday. As to that last statement in the affidavit, in further cross-examination, he testified: "As to whether I will swear that Mr. Weldon didn't read this statement over to me just like you did, will say that if he did, I didn't hear the last part. If he had read it I would not have signed it; I didn't have to do it that way and I wouldn't have signed it for $500. I wouldn't say that he didn't read it correctly, but if he did, I didn't hear it. I could not see what he had written as I couldn't read." The witness further shows that when he went, or was taken by Mr. Downs, to Mr. Weldon's office on this occasion he didn't know whether Weldon or Downs first mentioned about the whisky to him. "I didn't know what they wanted when I got up there and they had to start the conversation; one of them, I think it was Mr. Weldon, said he wanted to see me about that pint of whisky that I got from Ross. I did not tell them that I had gotten a pint of whisky on Friday and that is the reason I said that I would not have signed the statement if that other had been in there. I had no former acquaintance with Mr. Weldon, but I knew him when I saw him. I never had any business with him."

Ed Arledge, one of appellant's two witnesses, testified that he was in appellant's house in his room on Saturday evening, November 16, 1912, when the witness Jones was there and that he heard a conversation between Jones and appellant in which Jones got a bottle of whisky from appellant and offered to pay him for it and that appellant said, "No, Mr. Jones, I can't sell whisky. Did I ever sell you any whisky? and that Jones answered, no you never did." This witness, on cross-examination, developed that this occurred some time between 4 and 6 o'clock on that Saturday evening, more particularly between 5 and 6 o'clock; that he went down there on a matter of business and when he got there, appellant asked him to have a drink and set a bottle down on a trunk, but Arledge, the witness, then declined to drink and said he came after money. Thus showing by appellant's own witness, that appellant had and kept whisky where Jones said he got both pints from him. Jones further testified, that since November 15, 1912, appellant had a talk with him regarding this case; that he just asked him one time that he wished "I would go and change some in there."

The witness Jones testified that when he got that bottle of whisky Saturday evening from appellant there was somebody else in the room but he didn't recollect who it was. He said that it seemed to him that he and appellant had some talk at that time but he couldn't remember for certain what was said, and couldn't say that he then offered to pay for the bottle of whisky and that he then told appellant that he never bought any whisky from him. He said that he didn't recollect a word of anything of that kind passed; that he couldn't remember the particulars of what was said "because I was in no shape to remember." In other words, the testimony clearly shows, as stated above, that he was "gloriously drunk" on this occasion and he didn't know all that he said or did because of his then drunken condition.

Appellant's witness Downs testified that he was present when the said affidavit was prepared by appellant's attorney, Mr. Weldon, and that after Mr. Weldon wrote it out it was read over to Mr. Jones before he signed it, and that the last clause of that statement was written at Jones' dictation and he read and signed it. He said he believed that Mr. Weldon read it to Jones twice.

It is noticeable that notwithstanding the State's witness Jones testified in effect that he did not hear Weldon read the last part of said affidavit shown above, and that if he had so read it he would not have signed it, that Mr. Weldon did not testify at all. The record shows that he was present and was one of the attorneys who represented the appellant on the trial of this case in the court below and in this court.

From this record it is clear to me that the testimony of Jones that he bought the bottle of whisky from appellant on Friday, November 15, 1912, was true, and as soon as the officers found him in his drunken condition and began to try to induce him to tell where he got the whisky that he got drunk on, that appellant was made aware of it and immediately set to work to get witnesses to impeach him, and to get the affidavit and did get it, for the purpose of discrediting his testimony before the jury.

The weight of the testimony and the credibility of the witnesses were questions exclusively for the jury. They saw all the witnesses, heard them testify, the manner of their examination and cross-examination, and could better judge of the veracity and truthfulness of their statements than this court can possibly do from a statement of the facts. Twelve fair and impartial jurors on their oaths, after hearing all this testimony, by their verdict say that they believed the testimony of the State's witness Jones, and they were amply justified in doing so. Besides this, the learned judge before whom the case was tried, heard all this evidence and reached the conclusion that the jury were justified and authorized to believe the testimony of Jones, and refused to set aside the verdict, thereby sustaining the sufficiency of the evidence to justify the conviction of appellant.

Appellant, by his first bill, shows that after the announcements in the case and after a jury was empaneled and sworn, and defendant had pleaded not guilty, and the witnesses had been called and sworn and placed under the rule, and the court asked the county attorney what witness he would first use, the county attorney asked permission to talk with the said State's witness Jones, who was its only witness. The appellant objected to this; that the court allowed the county attorney to then have a private talk with said witness which lasted not exceeding two minutes. The court, in qualifying the bill, stated that the county attorney stated to the court that he desired to confer with this witness and the court told him he would give him one minute; that the consultation between the county attorney and the witness did not last exceeding two minutes; that the county attorney had been very busy; that the court felt it was entirely proper for him to have this conference with this witness and that under the circumstances it was no injustice to permit it. There was no error in this. It was entirely proper, if not his duty, under the circumstances, for the court to permit the county attorney to have this conference with the witness before he put him on the stand.

Appellant has two other bills. One of them, after the style, number of the cause, court, etc., is: "While Ed Arledge was on the witness stand, as a witness for the defendant and after he had been examined by the defendant's counsel, the county attorney on cross-examination asked said Arledge after he had testified in answer to the questions of the county attorney, that he was on Frank Ross' bond in this case, whether or not he had been on Frank Ross' bond before, and defendant's counsel objected to said question, because the same was irrelevant and immaterial, and because the same was prejudicial and the proving by said witness that he had been on bonds of the defendant in other cases, was a method of bringing before the jury, that the defendant had other prosecutions pending against him, and because the State had no right, either directly or indirectly, to prove or allude to other and different prosecutions, and the court overruled said objections and permitted said witness to answer questions of the county attorney in regard to former bonds, and the said witness then in answer to the county attorney's question and over objection of defendant said: ``I am his bondsman at the present time; I think I have been on Frank's bond before this. I could not tell you how often I have been on Frank's bond, but every time he asked me to go on it.' To which action of the court and the admission of the testimony the defendant then and there in open court duly excepted and asked that said exception be made a matter of record, and it was done accordingly. Approved with same explanation as on bill No. 3."

The next bill No. 3 is precisely as this, except that it is to the same questions to his said witness Downs and substantially the same answer by Downs. In approving this last bill the court did so with the explanation: "That this witness and W.E. Arledge showed considerable bias in favor of the defendant, and this testimony was admitted to show their feeling in the case, and it nowhere appears what kind of bonds they had signed for defendant. This court does think defendant was prejudged, or that the result would have been different but for this." It is perfectly apparent to me that the word "not" was omitted in the last sentence of the judge, following the words "this court does." With the word "not" therein the former part of the qualifications would correspond with the latter and without the word "not" it does not do so. In all probability this was a clerical error by the clerk in making up this copy. This is rendered more certain by the fact that the clerk, in copying the indictment in the transcript, had it that the appellant was charged with the commission of the offense "on or about the 15th day of November A.D. one thousand nine hundred and thirteen." This mistake of "thirteen" instead of "twelve" having been called to his attention, he has furnished and there is on file in this court a properly certified copy of the indictment which shows that "thirteen" was a mistake and that "twelve" was the date instead, and the appellant's attorney and the Assistant Attorney-General, in the submission of this cause, in effect, so stated and agreed before this court. But, however that may be, the evidence objected was clearly admissible. Earles v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 1181; Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611; O'Neal v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 938.

The only other assigned error by appellant is this: "The court erred in not instructing the jury that the testimony of C.B. Downs and W.E. Arledge to the effect that they had signed other bonds for the defendant, could not be used as a circumstance against the defendant."

There is no question, as stated above, but that it was proper cross-examination of appellant's said two witnesses to show by them that they not only were on the appellant's bond in this case but that each had signed other bonds for him, to show their interest in him and in his behalf. As stated by the judge in the qualification of the bill, both of these witnesses, showed considerable bias in favor of appellant. There can be no question about this. Mr. Branch in his Criminal Law has so aptly stated the propositions applicable to this question that we will merely quote three of his texts on this subject:

Sec. 367. "Testimony does not have to be limited where it can only be used by the jury for the purpose for which it was introduced. Leeper, 29 Texas Crim. App., 69, 14 S.W. Rep., 398; Franklin, 38 Tex.Crim. Rep., 43 S.W. Rep., 85; Sue, 52 Crim. Rep., 122, 105 S.W. Rep., 804; Rice, 54 Tex. Crim. 149, 112 S.W. Rep., 299; Wright, 56 Tex.Crim. Rep.; 120 S.W. Rep., 458; Wilson, 60 Tex.Crim. Rep., 129 S.W. Rep., 613; Melcek, 33 Tex.Crim. Rep., 24 S.W. Rep., 417; Brown, 41 Tex.Crim. Rep., 53 S.W. Rep., 866; Harrold,46 Tex. Crim. 568, 81 S.W. Rep., 728."

Sec. 873. "If impeaching testimony can only be used by the jury to impeach a witness it is not necessary to charge on the subject at all. Brown, 24 Texas Crim. App., 170, 5 S.W. Rep., 685; Magee, 43 S.W. Rep., 512; Robinson, 63 S.W. Rep., 869; Newman, 70 S.W. Rep., 95; Watson, 52 Tex.Crim. Rep., 105 S.W. Rep., 509; Waters, 54 Tex.Crim. Rep., 114 S.W. Rep., 628; Thompson, 55 Tex.Crim. Rep.; 113 S.W. Rep., 536; Schwartz,53 Tex. Crim. 451, 111 S.W. Rep., 399; Poyner, 40 Tex. Crim. 640, 51 S.W. Rep., 376; Givens, 35 Tex.Crim. Rep., 34 S.W. Rep., 626; Blanco, 57 S.W. Rep., 828."

Sec. 366. "If impeaching testimony could be used by the jury for purposes other than impeachment so as to exercise a strong,undue or improper influence with the jury as to the main issue, injurious and prejudicial to defendant, the charge must limit so that no unwarranted results would issue (ensue). Wilson,37 Tex. Crim. 373, 39 S.W. Rep., 373; Winfrey, 41 Tex. Crim. 538, 56 S.W. Rep., 919; Herd, 43 Tex.Crim. Rep., 67 S.W. Rep., 495; McGill, 60 Tex.Crim. Rep., 132 S.W. Rep., 941; Maples,56 Tex. Crim. 99, 119 S.W. Rep., 105."

Now let us see whether the jury in this case could have used this testimony for any other purpose than to show bias and interest of these two witnesses in appellant, and whether, from it, they could use it to exercise a strong, undue or improper influence as to the main issue.

The indictment charges that appellant on or about November 15, 1912, did then and there sell to J.H.W. Jones intoxicating liquors, etc. Nothing whatever is therein alleged about his selling to any one else, at any time, or place.

The court, in charging the jury, told them that if they believed from the evidence beyond a reasonable doubt that appellant did in Montague County at the time alleged in the indictment sell intoxicating liquors to said Jones, to find him guilty and assess his punishment, etc. In the next paragraph he told them that if they did not find and believe from the evidence beyond a reasonable doubt that appellant sold intoxicating liquor to said Jones at the time alleged in the indictment, to find him not guilty. Then in two other paragraphs he told them that the burden of proof was on the State; that the defendant was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt they would acquit him. Then in another paragraph that they were the sole and exclusive judges of the facts proved, credibility of the witnesses and the weight to be given to their testimony, but as the law of this case they will look alone to these instructions and be governed thereby.

The jury was sworn as prescribed by the statute, article 714 of the Code of Criminal Procedure: "You and each of you solenmly swear that in the case of The State of Texas against Frank Ross, the defendant, you will a true verdict render, according to the law and the evidence so help you God."

In my opinion there is no question but that this jury could not have used said testimony for any other purpose than that of affecting the credibility of the appellant's said witnesses, and that it could not be used and was not used by them to exercise a strong, undue, or improper influence as to the main issue submitted and required to be found by the charge of the court in this case. Appellant requested no charge on the subject and under article 743, Code of Criminal Procedure, I believe this court is required not to reverse this judgment as there is no error appearing therein which was calculated to injure the rights of appellant.

I believe that there is no error whatever in this record and that it should be affirmed, and it is so ordered.

Affirmed.