DocketNumber: No. 19452.
Citation Numbers: 115 S.W.2d 654, 134 Tex. Crim. 337
Judges: GRAVES, JUDGE. —
Filed Date: 3/16/1938
Status: Precedential
Modified Date: 1/13/2023
The offense is sale of liquor in dry territory; punishment is assessed at a fine of $100.00 and confinement in the county jail for thirty days.
The State introduced Roger P. Boyd, an agent for the State Liquor Control Board, who testified that on April 19, 1937, he went to the home of Mrs. Harvey Commander and purchased a pint bottle of whisky for seventy-five cents. E. A. Gordon, district supervisor for the Liquor Control Board, testified that Boyd turned the whisky over to him and that he, in turn, placed it in the hands of a chemist. The chemist testified that the bottle contained more than 43 per centum of alcohol by volume.
Appellant relied on the defense of alibi. She testified that she was not at home on the day in question; that she had left her home on said day at 9:30 A. M. and gone to Shawnee Lake, where she spent the day, returning at 9:00 or 9:30 P. M. She was supported, in her testimony, by three witnesses.
Appellant contends that the testimony of Roger P. Boyd shows that he was an accomplice witness as a matter of law. This question has been recently decided adversely to appellant's contention. See Stevens v. State,
Appellant complains that the court erred in not sustaining her motion for an instructed verdict because the complaint and information charged that appellant was not the holder of a medicinal permit or an industrial permit, while there was no proof on the trial of the case to sustain such allegations. This Court has held that it was not necessary to negative the exceptions in a complaint and information, the same being surplusage. See Baker v. State,
By bill of exception number one, appellant complains of the following question propounded to Roger P. Boyd, witness for the State: "Q. 'Mr. Boyd, did you have information of that place before you went out there?' A. 'Yes, sir.' "
Defendant objected to the question and answer on the grounds that it was improper, illegal, hearsay and prejudicial. The court sustained the objection and instructed the jury not to consider it, whereupon the counsel for State again asked: "Did you have information — ?"
Upon another objection at this point, the court again sustained the objection and instructed the jury not to consider it. We do not believe that the matter complained of was, under the circumstances, of such prejudicial nature as would require a reversal.
No error appearing in the record, the judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.