Campbell v. State , 59 Tex. Crim. 496 ( 1910 )

McCORD, Judge.

Appellant was indicted in the court below for keeping a disorderly house and knowingly -permitting to be kept a disorderly house, in which spirituous, vinous and malt liquors were sold and kept for sale without obtaining license as required by law. The information contained, five counts alleging that these offenses were committed on the 5th, 10th, 15th, 20th and 25th days of April, 1909. His trial resulted in his conviction with a penalty of $200 and confinement in the county jail for a period of twenty days. On the trial of the case the State, in order to make out its case, attempted to show that the appellant had Hnited States internal revenue license that authorized him to sell spirituous, vinous and malt liquors. On the trial of the case the State offered one Teiser, who testified that he had seen internal revenue license in the Green Light Cafe, in the possession of one Bngman, and that Bngman told witness that they were license and were issued to Campbell and Bngman. This testimony was objected to as hearsay and that it was an admission of a third party in the absence of defendant and the defendant could not be bound thereby. We are of opinion that the court was in error in admitting the statement of this witness, as to what Bngman told him. The license was not introduced in testimony; this was secondary, and the defendant could not be bound by a statement of another party as to whom the license were issued and as to whether they were revenue license or not.

We also find in the record another bill of exception showing that the witness Jim Teiser, on cross-examination, in speaking about the license that Bngman told him that he had, stated that he would not known an internal revenue license if he should see one, and he did not know whether the instrument Bngman showed him was a revenue license or not. He also testified that he had no conversation with the defendant about the license whatever. The defendant again renewed his objection to the testimony and moved the court to exclude it from the jury because the cross-examination of the witness developed the fact that his testimony was purely hearsay and that he did not know whether they were internal revenue license or not. This motion of defendant was also overruled and defendant excepted.

We find another bill of exceptions in the record to the testimony of Boscoe Bedus, in which the State was permitted to prove by the said Bedus that on September 10, 1909, he went to the Green Light Cafe, the place'it is charged the defendant kept the disorderly house, and asked a boy there if they had internal revenue license, and that the boy went out of the. room where he was into another room and brought him an internal revenue license. The witness did not produce these revenue license before the jury. The defendant objected to the testimony because it was hearsay, secondary and did not show that thé license were procured from the place where the law directed that they should be posted. This objection was well taken and should have been sustained and the testimony excluded. This 'was simply the statement of a witness that somebody brought him some license or something that he took to be license. The license were not produced; there was no predicate laid for the introduction of secondary evidence and this testimony was highly prejudicial to the rights of the defendant. We are therefore of opinion that the court was in error in permitting any testimony to be introduced of the character suggested in these bills of exception with regard to the United States internal revenue license and that the admission of this testimony was prejudicial to the appellant, and for this reason the case will have to be reversed.

There are other bills of exception, and errors assigned in the record. We are of opinion, however, that these are without merit and will not be considered.

For the errors indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.