DocketNumber： No. 13271.
Judges： Martin, Morrow
Filed Date： 5/14/1930
Status： Precedential
Modified Date： 11/15/2024
From Bill of Exception No. 1 the following is taken:
"Thereafter the defendant offered in evidence a part of the label on the bottle, to-wit:
"Following the printed word 'defendant' is the following, 'Unknown, a white man,' and on another line in print 'name of the purchasing agent' BUFORD H. CRAIG in writing; 'witness' in print that is followed by FRANK A. FENNIGAN, signed in ink; 'Frank A. Fennigan'; and the initials in ink on the upper left-hand corner of the label BHC."
This is followed in the bill by the language of the witness Craig quoted in the original opinion. The meaning of the label seems quite obscure. It does not seem, however, to state that Buford Craig was the purchaser of the whisky. The right to make the explanation, however, seems clear under Art. 728, C. C. P., 1925, conferring the privilege upon the opposing party to explain any act, declaration, conversation, or writing given in evidence by his adversary. See Vernon's Ann. Tex. C. C. P., 1925, Vol. 2, p. 836. It appears from the evidence that Craig and Fennigan, in company with each other, approached the appellant and asked if he had any whisky. The appellant asked how much was wanted and was told that a pint was desired. Fennigan paid the appellant for the pint of whisky. A bottle of whisky was produced at the trial which Craig identified as the pint of whisky that "Mr. Fennigan purchased from the defendant there in my presence. We labelled it and initialed it at the time." Fennigan testified that he and Craig were Prohibition Officers; that they went to the appellant's house and sought to buy whisky. The appellant at first demurred but finally went away and returned with a bottle of whisky for which Fennigan paid him $2.00 and received fifty cents in change. The witness produced the bottle *Page 76 of whisky and stated: "That is the whisky I bought from this defendant; for which I paid him a dollar and fifty cents."
Appellant insists that the introduction by him of the label presented an affirmative defense, namely, that Craig alone was the purchaser of the whisky. In the refusal of the trial court to instruct the jury in accord with such contention, it is thought that no error was committed.
The motion is overruled.
Overruled.