Opinion
No. 8076.
Delivered December 3, 1924. Rehearing denied April 8, 1925.
1. — Sale of Intoxicating Liquor — Evidence — Hearsay — What is Not.
Where witness was permitted to testify that on the day of the alleged sale of intoxicating liquor he gave three dollars to the party who purchased the whisky from appellant, such testimony was admissible and was not hearsay. If the State were limited in its testimony to what took place in the presence of appellant, it would be impossible for the State to ever make out its case.
2. — Same — Evidence — Negative Answer — Not Hurtful.
Where an objection is made to a question asked, and it is answered by the witness in the negative, it is difficult indeed to perceive an error in an answer that discloses nothing.
3. — Same — Bills of Exception — Filed During Term.
The uniform holding of this court since the Black case 41 Tex. Crim. 185 has been that all matters relating to errors in the overruling of motions for new trial, which involve the hearing of evidence, and the preservation of same, as showing error, must be filed during term time. Ash v. State, 245 S.W. 927. Appellant's bill complaining of the overruling of his motion for new trial on the ground of newly discovered evidence, filed after the adjournment of the term, cannot be considered.
4. — Same — Evidence — Must be Relevant.
Where on cross-examination of the prosecuting witness, counsel for appellant asked him "How long it had been since you had some whisky on hand" which said question was excluded by the court on objection of the State, no error was committed, it not being apparent that such question was relevant or material to any issue raised on the trial of the case.
ON REHEARING.5. — Same — Practice on Appeal.
When the order and judgment overruling a motion for a new trial recites that the court heard evidence, and such evidence is not here presented by statement of facts, or bill of exception properly filed during term time, this court uniformly holds to the theory that the action of the trial court was correct. In the instant case no statement of facts or bills of exceptions relating to the extraneous matter, filed during term time appear in the record. Lopez v. State, 84 Tex. Crim. 422, also Trasmond Crouchel v. State, opinion this day handed down.
6. — Same — New Trial — Traversing Motion for.
In the case of Washington v. State, 86 Tex.Crim. Rep., we think we went too far in holding it necessary that the State travere in terms the motion for a new trial when accompanied by supporting affidavits, and in so far as said case contravenes what is now said, same will be overruled.
Appeal from the District Court of Hill County. Tried below before the Hon. Horton B. Parker, Judge.
Appeal from a conviction of selling intoxicating liquor; penalty, one year in the penitentiary.
The opinion states the case.
No brief filed for appellant.
Tom Garrard, State's Attorney, and Grover C. Morris, Assistant State's Attorney, for the State.
Appellant was convicted in the district court of Hill County of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The testimony for the State shows beyond question a sale of whiskey by appellant to the prosecuting witness. The record contains four bills of exception, the first of which complains of the fact that witness Lambert was permitted to testify that on the day of the alleged sale of intoxicating liquor he gave three dollars to the party who purchased the whiskey from appellant. There was no hearsay evidence admitted, and we fail to discern the validity of the objection. If the State could introduce in evidence no testimony of any transaction save such as took place in the presence of appellant, it would be impossible for the State to ever make out its case.
The next bill of exceptions presents appellant's complaint of the asking of a question which was answered in the negative. There is nothing hurtful in the question asked, and the answer resulting in the elicting of no testimony injurious to the appellant, we percieve no error in the matter complained of.
Appellant also has a bill of exceptions to the overruling of his motion for new trial based upon newly discovered evidence. The order of the learned trial court recites that when the motion for new trial came before him he heard same and the evidence then presented and overruled the motion. It is the holding of this court since the Black case, 41 Tex. Crim. 185, that all matters relating to errors in the overruling of motions for new trial, which involve the hearing of evidence and the preservation of same as showing the error, must be filed during term. Ash v. State, 245 S.W. Rep. 927. The trial term ended on June 23rd and the bill of exceptions was not filed until July 14th thereafter. The State insists that we cannot consider said bill because filed too late and we are in accord with this contention.
The remaining bill of exceptions complains of the rejection of the answer to a question propunded to prosecuting witness while on the stand, the question being as follows: "How long had it been since you had some whiskey on hand?" As stated in the bill, the object of the defense in asking this question seems to have been to show that the liquor the prosecuting witness had at the time, had been gotten by him at Cleburne and not from appellant. If such was the purpose of the question, it was not apparent from the form of same. It is stated in the bill that appellant expected to show by said witness that he had only one lot of whiskey or what was claimed to be whiskey in his possession on that day. No witness was introduced on the trial of the case who swore that the prosecuting witness had gotten the liquor, claimed by him to have been obtained from appellant, at Cleburne, nor was any statement made by said prosecuting witness introduced to that effect. In this condition of the record we think the learned trial judge justified in holding he question and its answer immaterial and irrelevant to any issue in the case.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.
When the order and judgment overruling a motion for new trial recites that the court heard evidence, and such evidence is not preserved or here presented by statement of facts or bill of exceptions properly filed during term time, this court uniformly holds to the theory that the action of the trial court was correct. If the appellant be not satisfied that such evidence supports the conclusion reached by the lower court, he should bring it either by statement of facts or bill of exceptions filed during term time, before the appellate court for review. In the instant case no statement of facts or bill of exceptions relating to the extraneous matter, filed during term time, appears in the record. Nothwithstanding the fact that affidavit was attached to the motion for new trial, the judgment overruling same reciting that the court heard evidence, justifies this court in upholding the action of the lower court in declining to grant said motion. Lopez v. State, 84 Tex.Crim. Rep.; also Trazmond Crouchett v. State, opinion this day handed down. In Washington v. State, 86 Tex. Crim. 652, we think we went too far in holding it necessary that the State traverse in terms the motion for new trial when accompanied by supporting affidavits, and in so far as said case contravenes what is now said, same will be overruled.
The motion for rehearing will be overruled.
Overruled.