Woodard v. State

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The date of the offense is laid on or about the 9th day of November, 1922. Goben is named as the purchaser. He testified that he arrived at the town of Rule on the 2d of November and left there on the 9th of that month; that on various occasions between those dates he went to Townes' blacksmith shop; that on one of his visits there he bought from the appellant a quart of whisky for which he paid him seven dollars. This occurred, he said, about the 4th of November. His business was to buy whisky to entrap the offenders. He made a record of the date of the purchase. Another witness testified that he saw the transaction though he did not remember the date.

In instructing the jury, the court restricted the right to convict to a transaction occurring on the 4th day of November. Several witnesses testified on behalf of the appellant to the effect that Goben was drunk on the night of the 3d of November and also on the following day.

In several bills of exception complaint is made of the refusal of the court to receive evidence that Goben was drunk between the 4th and 9th of November. We perceive no evidence rendering relevant the inquiry touching the drunkenness or sobriety of the witness Goben after the date of the sale in question. His condition at and before that time was properly made an issue as it might have affected his credibility. There was evidence on both sides of that question.

As a predicate to impeach the witness Goben, appellant asked if he had not sold whisky to Ralph Lee on November 4th. This Goben denied. The court rejected testimony to show that Lee bought whisky from Goben on the date mentioned because it was an effort to impeach the witness Goben upon an immaterial issue. We do not understand from the bill how the selling of the whisky by Goben to Lee became pertinent. After the court had ruled that the inquiry was not a proper one, counsel, according to the bill as qualified, repeated the same question several times, and finally the witness answered it in the affirmative. The court reprimanded counsel and told the jury that neither the question nor the answer should be considered. It was not error for the court to exclude the testimony because it was immaterial. While a more appropriate time for the admonition of the counsel might have been chosen, the fact that it was done under the present circumstances does not impress us as being of such a prejudicial nature as would justify a reversal of the judgment. Redwine v. State, 87 Tex.Crim. Rep..

To prove an alibi the appellant sought to continue the case because of the absence of his wife. She was expecting to give birth to a child, and according to the motion, would have testified that for six days preceding the ninth of November, appellant was with her at their home about twelve miles distant from the place at which the sale was made. Her sickness at the time of the trial prevented her attendance. The court continued in session about a week after the verdict was rendered. The motion for new trial is not supported by the affidavit or testimony of appellant's wife, nor is the absence of such verification explained. The circumstances do not indicate that in overruling the motion for new trial, there was an abuse of the discretion of the trial judge. Hollis v. State, 83 Tex.Crim. Rep.; Walker v. State, 91 Tex. Crim. 507, 240 S.W. Rep., 538.

We find nothing in the record requiring a reversal of the judgment. It is therefore affirmed.

Affirmed.

ON REHEARING. October 31, 1923.