Jones v. State ( 1930 )

LATTIMORE, Judge.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

The State witness testified positively to the purchase of a quart of whisky from appellant sometime before Christmas in 1926. It seems that said prosecuting witness was not brought before the grand jury until 1928, and there being nothing about the transaction in question to fix particularly the date of the sale, it is easily perceivable that he might have varied from the exact date, and yet remembered clearly the fact of the sale. We think the evidence sufficient to support the conviction.

There are three bills of exception. The first complains of questions propounded to a defense witness relative to his having been engaged in a burglary prior to the time he became a witness. The bill is qualified by the statement of the trial court that it appeared to him that the prosecuting attorney was trying in good faith to lay a predicate for the impeachment of the witness. We perceive no error made manifest by this bill.

Bill No. 2 complains of the overruling of the motion for new trial, to which motion is attached the affidavits of appellant’s wife and certain members of the jury which tried the case. The affidavit of the wife sets up testimony which she says she would have given had she been present at the trial; the affidavit of the jurors sets up their belief that if the testimony of the wife above referred to, had been before them, their verdict might have been different. No effort was made on behalf of appellant to have the case postponed or continued on account of the absence of the said wife, nor is there any reason or excuse offered or apparent why such application was not made. It appears from the sworn motion for new trial made by appellant that he and his wife were separated at the time of the trial but that they lived together at the time of this alleged sale of whisky. The woman says in her affidavit that she would have sworn that appellant was living in Oklahoma at the time of the alleged sale of whisky. This court judicially knows that Lamar county, Texas, where the alleged sale of liquor took place, borders upon the State of Oklahoma, and no reason is perceived why appellant might not have been living in the State of Oklahoma before Christmas in 1926 and have easily crossed into the State of Texas and sold the liquor to the State witness as testified to by him. In other words, we perceive no such materiality in the statements made in the affidavit regarding the wife’s testimony, as would have justified the court continuing the case to procure her testimony had an application for continuance been presented. This bill appears wholly without merit.

Bill of exception No. 3 sets up that appellant’s defense was an alibi, and that his wife was not a witness for the reasons set out in his fourth paragraph of his motion for new trial, and avers that her testimony is material, and he therefore asks that a new trial be granted. This is substantially the same complaint as appears in bill of exception No. 2. We note from the record that appellant did not take the stand and testify, nor in anywise deny that he sold liquor to the State witness, except that he attempted to prove by certain witnesses that he moved from Texas into Oklahoma sometime before Christmas 1926. As we view the case appellant might either have sold the liquor before he moved, and the State witness be unable to fix accurately the date because of the lapse of time; or appellant might have moved to Oklahoma and crossed back over into Texas and sold the liquor to witness as testified to.

Finding no error in the record, the judgment is affirmed.

Affirmed.