Martin v. State

In view of appellant's insistence we have re-examined the evidence and are confirmed in the view that no issue was raised as to appellant's lack of knowledge of the presence of whiskey in the wagon, which called for giving the special charge upon that subject. The case of Gilbreath v. State, 98 Tex. Crim. 80,263 S.W. 922, under the facts therein appearing, does not in our opinion furnish a precedent demanding the charge requested.

We are unable to draw the fine distinction insisted upon as to the statement of the witness Wise when he says as appellant passed witness' house he was "apparently like he was drunk." The witness says he had been watching for appellant and saw him "right close as he passed." He followed appellant to his house not far away and in describing his condition there, witness says "he was apparently drunk, so drunk that I took him in the house and put him down."

Admitting in evidence the docket entries of the forfeiture of appellant's bond and proof that the sheriff had offered a reward for him would not call for a reversal. The evidence was abundant that appellant was avoiding trial and made an effort to escape when re-arrested. His own sons testified without objection that they knew his bond had been forfeited and had heard there was a reward out for him.

Appellant criticises our disposition of his complaint that certain leading questions were permitted to be asked of a witness regarding the contents of containers claimed by the state to have been broken by appellant's boys when witness was about to search appellant's wagon. The first question presented in that bill is "And the boy was up there breaking the whiskey over the wheel of the wagon." This question was objected to as a leading question, and it is certified that at that stage of the proceedings no witness had testified that the vessels broken contained whiskey. If an answer was given to that question the bill does not show it. The bill indicates that the District Attorney changed the form of his question and then asked, "Well, state why you say it was whiskey." No answer seems to have been made to this question. The bill further recites that the District Attorney then asked the witness "if he had stated that it was whiskey," and to this last question, so far as we can tell from the bill, the witness answered "Yes." Leading questions, although improper, do not generally call for a reversal and we think the bill in the present case presents no exception to that rule, when considered in connection with all the evidence appearing in the record even if it be conceded that some of the questions complained of might be leading.

The motion for rehearing is overruled.

Morrow, P. J., not sitting.

Overruled.