Rushing v. State

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

The State's witness testified that he purchased a pint of whisky from appellant at a filling station. Testifying in his own behalf, appellant denied that he was at the filling station, and declared that he had no transaction with the witness.

Bill of exception No. 1 reflects the complaint of appellant that his counsel was unduly restricted in his voir dire examination of the jurors. The inquiry of counsel was: "Are you in favor of the law of reasonable doubt in criminal cases?" The court declined to permit the question to be asked, but advised appellant's counsel that he might explain to the jurors the law of reasonable doubt and presumption of innocence, and might ask if they were prejudiced against either of said laws, and if for any reason, they would hesitate to follow the court's charge relative to said laws. Counsel declined to ask the questions, but the court explained the law of reasonable doubt and presumption of innocence to the jury and propounded to them the questions counsel for appellant had declined to ask. Under the holding of this court in R. F. Ward v. State, 116 Tex. Crim. 292,31 S.W.2d 638, delivered October 6, 1930, the court was within his discretion in such ruling.

In bill of exception No. 3 appellant contends that his counsel was unduly restricted in the cross-examination of the State's witness Barringer. This witness had testified on direct examination that the sale of whisky occurred in the afternoon. On cross-examination he was asked by appellant's counsel if he would say that the transaction did not take place at eleven o'clock in the morning. The witness replied that he was not positive whether it was in the morning or in the afternoon. Whereupon appellant's counsel asked the following question: "Do you now swear to the jury that it did not take place in the morning at eleven o'clock?" The district attorney objected on the ground that the question had been answered. The court sustained the objection. We are unable to reach the conclusion that the bill presents error. It appears that the witness had answered the question propounded to him by appellant's counsel.

It appears from bill of exception No. 4 that Mrs. Smoot, a witness for appellant, had testified on direct examination that she was at the place where State's witness claimed to have bought whisky from appellant, and that appellant was not there at said time. Upon cross-examination the district attorney asked the witness where her husband was. Appellant objected and the objection was sustained. The question was not answered. We are unable to tell in what particular the asking of the question would have prejudiced the rights of appellant. Ward v. State, supra.

Bill of exception No. 5 relates to the argument of the district attorney to the effect that a cousin of appellant was charged in the Federal Court with a felony. It appears from the bill of exception that this cousin, in testifying for appellant, admitted that he was charged with a felony in the Federal court. It was proper for the district attorney to discuss the matter as affecting the credibility of the witness.

In his argument to the jury, the district attorney stated that appellant's reputation was not good, as he "would not be hanging around such a place" if he had a good reputation. Appellant objected to the remarks and the court declined to instruct the jury to disregard them, although appellant presented a written instruction covering the matter. The bill is qualified with the statement that the argument was in response to the argument of appellant's counsel to the effect that a hard-working negro of good reputation should not be convicted on the evidence adduced by the State. It is the rule that the accused is not entitled to complain of the argument of State's counsel which is occasioned and justified by the argument of his own counsel. Section 363, Branch's Annotated Penal Code.

Failing to find reversible error, the judgment is affirmed.

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.

Hawkins, J., absent.

ON MOTION FOR REHEARING.