McLendon v. State , 101 Tex. Crim. 663 ( 1925 )

When the original opinion was written the record contained no bills of exception. Appellant has filed application for writ of certiorari alleging that two bills of exception were properly reserved, authenticated and filed as a part of the record in this cause in the court below, but that the clerk by inadvertance incorporated them in the transcript in another case and omitted them from the transcript in this case. Copies of the bills properly certified by the clerk are attached to the motion.

One of them complains of the admission in evidence of testimony by the sheriff that after appellant was arrested he made bond; that later an alias capias was given witness who had appellant re-arrested in California and he was brought back to Orange for trial. We find no error in the admission of this testimony. Evidence of flight is admissible as a circumstance of guilt.

The specific sale of liquor charged against appellant was claimed to have been made to Earnest Mansfield. Appellant did not testify. The bill recites that before any testimony was introduced by appellant the State proved by Mansfield that he knew he could get whiskey from appellant because he had seen another man buy some from appellant about three weeks before. This testimony was objected to as showing a separate and distinct transaction and not admissible under any of the exceptions permitting such proof. The evidence should have been excluded. (Burton v. State, 93 Tex.Crim. Rep.,247 S.W. 869), but under the facts before us we do not believe a reversal of the judgment is demanded because of the erroneous admission of such testimony. Mansfield testified that about eight o'clock on a certain night he purchased intoxicating liquor from appellant. This was not denied by appellant or any other witness. Only one defense witness was offered, a son of appellant, who testified that he came to appellant's house at nine-thirty on the night of the alleged sale and that after he came he saw nothing of prosecuting witness about the place. This testimony in no way challenged the statement of Mansfield that he had bought the liquor an hour and a half before appellant's son claimed to have been on the premises. If more than the minimum punishment had been inflicted, or if the evidence improperly admitted impinged upon any defense offered by appellant we would have no alternative but to reverse, but such condition does not arise under the facts before us. Only the minimum punishment was inflicted. The testimony erroneously admitted does not call for a reversal.

Having already considered appellant's bills, his application for writ of certionori is denied, and his motion for rehearing overruled.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.