Holmes v. State , 52 Tex. Crim. 352 ( 1908 )

DAVIDSON, Presiding Judge.

—The affidavit in this case was by J. L. Shoemaker, charging that appellant sold intoxicating liquor to B. F. Stephens. Stephens testified that he had bought a half-pint of whisky from appellant on the twelfth of March and paid him 25 cents for it. That the purchase was made about 9 or 10 o’clock in the morning in appellant’s place of business. Appellant testified that he did not sell whisky to the said Stephens, as did Bush. So there was a square issue on the question of sale vel non. The witness Stephens was permitted to testify that he bought a half-pint of whisky from appellant on the twelfth of March, and that after he bought it he carried it to Cain, justice of the peace, and gave it to him, who put some writing on it. When the witness gave Cain the bottle he told Cain whom he bought it from, and that he bought it from appellant, informing Cain of the date of the purchase; that after the label had been put upon the bottle, the witness took the bottle, carried it to Winnsboro and gave it to Mr. Carloek.

Exception was reserved. His statement to the justice of the peace as from whom he had bought the whisky was inadmissible. By Cain, over appellant’s objection, it was shown that Stephens brought him a bottle of whisky and told him at the time that he had bought it from appellant on the twelfth of March. This statement was inadmissible, as to the matters occurring between Cain and Stephens in the absence of appellant. Cain testifies that there was nobody present but he and Stephens. This was not impeachment evidence as presented in this case.

For the reasons indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.