DocketNumber: No. 8417.
Citation Numbers: 263 S.W. 293, 98 Tex. Crim. 37
Judges: HAWKINS, JUDGE.
Filed Date: 5/28/1924
Status: Precedential
Modified Date: 1/13/2023
In our former opinion we declined to consider the bills of exception because filed after the expiration of the time granted by the court. It is made to appear that the trial judge had been called to California, but expected to return by December 24th, 1923, and definitely fixed the expiration of the second extension at said date. He was detained longer than he expected and did not reach home until December 26th. The bills had been prepared and were ready for submission to the judge long before that time, and it is clear that the failure to get them filed before December 24th was not the result of negligence on the part of appellant. We have therefore concluded that the bills of exception should be considered.
Complaint is made because the sheriff was permitted to identify a still as the one found near the place where appellant was arrested, the objection being that it had not been shown that appellant operated it or had any connection with it. According to the theory of the State the still was the very one used in the commission of the offense charged against appellant. The fact that he denied connection with it did not render proof relative to it nor identifying it in the presence of the jury inadmissible. It was a question for the jury to determine under all the circumstances whether appellant had been guilty of manufacturing liquor with the still.
Complaint is also made because the sheriff was permitted to testify that in the morning after the arrest he made search of the surrounding country covering a radius of about a mile within which he found some five or six places showing evidences of fire having been built, with empty cans and things scattered around, which indicated that stills had been operated in those places, and that within about two hundred yards of the point where appellant was arrested and where the still was located he found some cooking utensils and a table, the objection being in both instances that there was no evidence connecting appellant with the articles so found, nor with the operations of other stills. The case was one depending upon circumstantial evidence, and the State had a right to explore all legitimate avenues which would throw light upon the transaction or tend in any way to connect appellant with the operation of the *Page 41 still. The finding of the cooking utensils, table, etc. in the vicinity where the still was being operated and near where appellant was arrested was not subject to the objection interposed by appellant. This was a circumstance to be considered by the jury in connection with all other circumstances in the case relative to the matter under investigation. We see little probative force in the proof as to the discovery of other places which indicated that stills may have been operated, either as establishing appellant's guilt or as bearing upon the case in any way. But we do not deem the evidence of such character as calls for a reversal.
Appellant complains in bills of exception three and four because the State was permitted to elicit from appellant on cross-examination that he had been indicted in the State courts and Federal courts for violation of the liquor laws in offenses different from that on trial. The bills recite that the indictments were returned in offenses alleged to have been committed over two years prior to the one for which defendant was being tried, the objection being that they were too remote to be admissible for any purpose. It is nowhere stated in either of the bills the exact date of the former indictments and the mere statement that they had been returned over two years before the present prosecution originated did not bring them within the principle of remoteness. Scoville v. State, Texas Crim. Rep.,
The only other bill of exception in the record complains of the action of the court in overruling the motion for new trial. The assignments of error in the motion relate to those things which have heretofore been discussed.
Believing the motion for rehearing presents no matter which would call for a reversal of the judgment, and that the facts are sufficient to authorize a conviction, the motion for rehearing will be overruled.
Overruled.