Harbert v. State ( 1931 )

Appellant insists that bill of exception No. 1 is sufficient to present error and that the error is such as calls for a reversal. The bill recites as a fact that the sheriff was permitted to testify that on the morning after appellant's arrest the witness found a jug in the rear room of Bowmar's market which jug had in it a few drops of whisky. One objection urged to this evidence was that the jug was found "long after appellant's arrest." This objection is supported by the certificate of fact in the bill, but because the jug was not found until after appellant's arrest would not make evidence of the finding inadmissible, if the jug had been otherwise properly connected with appellant. The other objections urged against the evidence were: (a) that appellant was not present when the jug was found, and (b) that the conditions in the rear of the market were not shown to have been the same as on the day preceding. Appellant not being present when the jug was found would not render proof of its finding objectionable if otherwise admissible. No facts are recited in the bill verifying the truth of the two objections last mentioned. It would be impossible to know whether they had foundation without going to the statement of facts to verify the matter. This we are not required to do. We are referred to Hinds v. State,29 S.W.2d 768, as authority for rejecting the evidence complained of. The opinion in that case does not disclose the objections against the evidence there sought to be excluded. Reference to the original record reveals that the objection to evidence regarding a certain bottle was upon the specific ground that "no evidence was introduced tending to connect defendant with the bottle offered in evidence." The bill of exception then sets out in detail all the evidence upon the point mentioned, thus giving in the bill all the information upon which this court acted. As against the objections urged in the present case the ruling of the trial court cannot be held to have been erroneous.

It is the opinion of the writer that the evidence about finding the jug, as against proper objection, would not have been admissible. Under all the facts, however, it seems of so little probative force one way or the other as would make it of doubtful propriety to base a reversal upon it even if the point was properly before us. The guilt of appellant seems certain. All the evidence is positive that no whisky was in the car until appellant entered it. Hall was sober. Appellant was drunk. Immediately when appellant entered the car he asked Hall if he wanted a drink. He also asked another state's witness the same question and was in the act of producing a bottle when the sheriff appeared on the scene. Appellant offered no testimony whatever. He received the lowest penalty, and even if we were in a position to hold the evidence regarding the finding of the jug upon the day after appellant's arrest was improperly received, this court could with difficulty justify a reversal upon that circumstance, in view of all the other evidence in the case and the punishment assessed.

The motion for rehearing is overruled.

Overruled.