Beard v. State ( 1957 )

DICE, Judge.

The conviction is for unlawfully selling beer in a dry area; the punishment, six months in jail and a fine of $500.

The agreed statement of facts shows that proof was made by the state that on or about the date alleged the appellant did sell to Ronald Gresham in Anderson County the intoxicating beverage described in the complaint and information. It was further shown that for the purpose of proving that Anderson County was a dry area the state offered in evidence a petition for a prohibition election filed with the commissioners’ court of Anderson County on June 16, 1913, an order entered by the court calling the election on July 3, 1913, an order entered on July 14, 1913, by the commissioners’ court declaring the results of the election as against prohibition and a judgment entered in the district court of Anderson County on July 14, 1913, in an election contest proceeding styled “George A. Wright, et al. v. J. J. Strickland” declaring the result of the election as being in favor of prohibition and ordering that the sale of intoxicating liquor in Anderson County be prohibited from and after July 11, 1915.

Appellant questions the sufficiency of the evidence to show that Anderson County was a dry area.

It is first insisted that the evidence is insufficient because the information alleged the number of the cause in which the judgment in the election contest was rendered and the agreed statement of facts does not show the number.

The judgment introduced in evidence by the state is shown in the agreed statement of facts and in verbatim the same as alleged and set out in the information. While the number is not shown, the judgment as introduced together with the other evidence is sufficient to sustain the jury’s finding that Anderson County was a dry area as alleged.

We overrule appellant’s contention that the judgment in the election contest relied upon by the state to prove the dry status of the county was ineffective for such purpose because the district court was without power or authority to render such a judgment. In Brooks v. State, 138 Texas Cr. Rep. 526, 137 S.W. 2d 768, this same judgment was relied upon by the state and held sufficient by this court to show that Anderson County was a dry area.

Appellant next insists that the case should be reversed because the order overruling his motion for new trial shows that he was not present when the motion was heard, considered and overruled by the court.

Except in the matter of fundamental error, it is essential to authorize review that rulings of the trial court and objections and exceptions thereto and questions of practice and procedure be brought up by bills of exception. See 4 Texas Jur. 204, 205, Appeal and Error-Criminal Cases, Sec. 146. That the defendant was not present when his motion for new trial was acted upon is not error which may be preserved by informal bill of exception under Art. 760e or 759a V.A.C.C.P.

The objection that a part of the trial proceeded in the absence of the defendant, to be reviewed on appeal, must be preserved by a bill of exception, Cassius v. State, 110 Texas Cr. Rep. 456, 7 S.W. 2d 530; 4 Texas Jur. 219, Sec. 157.

Had appellant complained in the trial court or there questioned the validity of the court’s action in hearing and overruling his motion for new trial in his absence, the trial court would have had the opportunity to set aside his order and rehear the motion in appellant’s presence. Krautz v. State, 4 Texas Ct. App. 534; Berkley v. State, 4 Texas Ct. App. 122; Garcia v. State, 5 Texas Ct. App 377.

The recitation in the court’s order that no right or privilege guaranteed by the Constitution and laws of the United States or of the State of Texas was waived by the appellant did not relieve appellant of the necessity of reserving a bill of exception in order to preserve for review by this court the action of the trial court in hearing and overruling the motion for new trial in his absence.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.