Griffin v. State , 95 Tex. Crim. 588 ( 1923 )

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

Appellant sought a new trial alleging some newly discovered testimony and upon the hearing of the motion offered testimony in support of same. The statement of the facts heard in support of the motion for new trial was not filed until after the adjournment of the trial term. Since the rendition of the case of Black v. State, 41 Tex.Crim. Rep., this court has uniformly declined to consider statements of facts offered in support of applications for new trial, unless such statements be filed within the trial term.

Appellant attacks the Dean Law as being in conflict with the Federal acts. We have fully discussed and settled this in Ex parte Gilmore, 88 Tex.Crim. Rep.; Chandler v. State, 89 Texas Crim. Rep., 308, 232 S.W. Rep., 336; Chandler v. State, 89 Tex. Crim. 306, 232 S.W. Rep., 317. The latter cases were carried before the Supreme Court of the United States and the doctrines therein announced were upheld by the decision of said court.

By a bill of exceptions complaint is made of the refusal of the trial court to postpone the case, the principal ground of complaint being that appellant had had no opportunity to employ counsel. It appears from the record that appellant was placed under bond to await the action of the grand jury and that when the indictment was returned against him the case was not tried for some time. There was no error in the refusal of the learned trial judge to grant the request to postpone.

By his bill of exceptions No. 2 appellant complains that he asked a witness this question: "How long has this negro been in jail at any one time since you have been deputy sheriff here?" The bill of exceptions does not state what the answer of the witness would have been had he been permitted to answer, and nothing in said bill enables us to know what negro was referred to in the question, and we are unable to appraise the object or purpose of the question or determine the injury of the refusal.

Questions propounded to witnesses as to whether they would believe that negro on the stand, — are manifestly improper. The farthest courts have gone is to hold that a witness may be permitted, after affirming his knowledge of the bad character of the witness in the community in which he lived, to then say that from his knowledge of this bad character he does not believe the witness worthy of belief under oath.

There was no error in the rejection of the testimony of witness Bratcher concerning the reputation of the principal State witness for truth and veracity. After making the statement that he knew it and that it was bad, said witness disclosed upon further examination that his testimony was based upon matters which would not in law give him the right to testify to such reputation. This being disclosed to the court below, the learned trial judge correctly sustained the State's motion to exclude the testimony from the jury. Bills of exception Nos. 6, 7 and 8 present no error.

Being unable to agree with any of the contentions of appellant, an affirmance is ordered.

Affirmed.

ON REHEARING. October 31, 1923.