Waggoner v. State

Appellant was convicted of the misdemeanor offense of selling intoxicating liquors in Nacogdoches County, where prohibition was in force, and assessed the lowest punishment.

The testimony by the State's witness was positive and unequivocal to the effect that appellant, at the time alleged, sold to him, in said county, intoxicating liquors, and that he did not deliver it to him under an agreement before then that he ordered it for said witness and merely delivered it to him without making any sale. The testimony on the appellant's side disputes this, and he had other testimony corroborating his own. This was a question for the jury and the lower court. They had all the witnesses before them, heard them testify, and saw them while testifying, and their credibility was a question for the lower court and not this. We can not, therefore, disturb the verdict.

The main charge of the court and that specially requested by appellant which was given by the court submit every issue in favor of appellant that was raised by the testimony, and the court properly refused others requested by appellant. Nor do appellant's objections to the court's charge show any error.

The court properly excluded the proposed testimony by appellant to the effect that the State's main witness had made a single sale of intoxicating liquor, for the purpose of impeaching him. The offense, if any, was merely a misdemeanor. He had neither been indicted nor prosecuted therefor. The law is well settled and needs no citation of cases, to the effect that no witness can be thus impeached.

Appellant complains that the court erred in not granting him a new trial on the ground of claimed newly discovered testimony. The record shows that the court heard testimony on this during term time in ruling on his motion for new trial. This testimony was not filed during term time but nearly twenty days later. Hence, under the uniform decisions, and many of them, of this court, such matter can not be reviewed. However, to take appellant's motion and the affidavit of the witness whose testimony was claimed to be newly discovered, it would clearly show that it was not newly discovered, for the affidavit, in substance, shows that he was present at the time when appellant claims he made an agreement with the prosecuting witness to order for him, and some additional for himself, the liquor the State's witness testified had been sold to him by appellant, and his whole affidavit would exclude the idea that his testimony was newly discovered.

There was no error in the trial, and the judgment is affirmed.

Affirmed.

HARPER, JUDGE, absent.

ON REHEARING. December 27, 1916.