Sanford v. State

We have reviewed the testimony in the light of appellant's motion. There is little, if any, controversy over the proposition that appellant sold to a young boy, in the fall of 1928, a pint of intoxicating liquor. She did not deny this, nor introduce any witness present at the time of the alleged sale, who denied or contradicted it in any way. Appellant filed a motion for an instructed verdict of acquittal, based on what she claims to be the uncertain testimony of the State witness Raymond Jordan as to whether the transaction occurred prior to the return of the indictment. Jordan testified, on direct examination, positively that about the 14th of October, 1928, he bought a pint of liquor from appellant at night, paying her therefor two dollars, which liquor he gave to Bill Nichols who drank most of it himself and got drunk, and was arrested that night for driving an automobile while intoxicated, and who had an automobile accident on said night. On cross-examination the young man affirmed the fact of his purchase of the liquor, and stated at first again, that he bought it October 14th and not November 14th. Later he said he had no means of identifying the date, and that he did not know whether it was October 14th or November 10th, but did testify that the sale occurred on Saturday, and the following Monday he made a statement concerning same to the county attorney. The grand jury returned the indictment herein November 5th, alleging the date to be October prior. The court told the jury that before they could convict they must find that the transaction took place before the return of the indictment. There will be no presumption by this court that a grand jury were without facts before them when they returned an indictment. Moore v. State, 84 Tex.Crim. Rep.. The trial court had the witnesses before him, could see and hear their testimony, and was in a better position than this court to estimate the correctness of the jury's action in accepting as true the testimony of the State witness Jordan that he bought the liquor in October. Bocknight v. State, 87 Tex. Crim. 428. We deem this court bound by the rule presuming correctness in the action of the trial court in overruling the motion for new trial, until the contrary is shown.

We have read with much care and interest the able motion of appellant in support of her contention that the arguments complained of in bill of exception No. 2 were necessarily of such harmful character as that a requested charge to the jury not to consider same, was unnecessary, but think this matter correctly disposed of in our former opinion. We have examined the various statements made by the State's attorney, and do not deem the authorities cited by appellant to justify us in arriving at a different conclusion from that formerly expressed.

The motion for rehearing is overruled.

Overruled.