Henderson v. State , 52 Tex. Crim. 514 ( 1908 )

BROOKS, Judge.

—Appellant was convicted of violating the local option law and his punishment assesed at a fine of $100 and sixty days in the county jail.

Appellant in his motion for a new trial complains that the court erred in permitting the witness, Will Greenway, to testify that he gave a bottle containing whisky to the county attorney, which bottle said witness claimed to have procured from the defendant, as will be seen by defendant’s bill of exceptions Ho. 1. We find no bills of exception in the record. Were we warranted to look at the statement of facts, which the rules of this court preclude, there is no such suggestion in the witness Will Greenway’s testimony as contained in said statement. Tom Warner does testify that Will Greenway gave him a bottle of whisky; and that he (Warner) gave said bottle of whisky to the county attorney; that the bottle he gave the county attorney was the same bottle he got from Will Greenway. This testimony would be admissible. We have held at this term of the court that a statement to the effect that the prosecuting witness said he got the whisky from the defendant, to another witness, would be hearsay; but the testimony here disclosed in this statement of facts would not be hearsay. Bruce Smith v. State, decided February 13, 1908. In other words, it is not permissible for a witness to tell what another witness states, regardless of whether the other witness be the main prosecuting witness or not. However, as stated at the outset, there being no bills of exception in the record, the matter can not be reviewed.

.The second ground of the motion complains that the court erred in his charge to the jury, wherein he limits the effect of the testimony of the witness, Will Greenway, to the effect, that he had given a bottle containing whisky to the county attorney and tells the jury that said testimony was admitted solely for the purpose of determining whether said bottle or bottles contained whisky. The charge complained of, is as follows: “You are instructed that the testimony introduced on the trial, to the effect • that the fluid given to county attorney or assistant county attorney by the witness testifying in the case, was whisky, was admitted by the court solely and exclusively for the purpose of determining whether the bottle or bottles contained whisky, and ought not to be considered by yourselves for any other purpose, even though you may believe from the evidence beyond a reasonable doubt that the said bottle or bottles contained whisky, yet the defendant would be entitled to an acquittal unless, as in the next paragraph of this charge, you find that the sale was made as therein set out.” The next paragraph of the court’s charge tells the jury in substance, that if the defendant sold whisky to Will Greenway, they would find defendant guilty. We do not think there was any e'Tor in the charge. However, we do not think it was necessary to limi. this testimony at all, but the limitation placed on same could not have hurt appellant, since the testimony as suggested by the court, was only admitted and could be only used for the purpose of proving whether the fluid bought by the prosecuting witness from appellant was whisky.

Appellant’s last insistence is that the evidence is insufficient to support the conviction. The prosecuting witness was an ignorant negro. His testimony is impeached by various witnesses on material matters, hut the jury have seen fit to believe his testimony, and they being the sole judges of the credibility of the witnesses, we are not warranted in disturbing their finding. Therefore, the judgment is affirmed.

Affirmed.