Appellant was convicted in the County Court of Jones County on a charge of selling intoxicating liquors therein in violation of the local option law. The jury assessed his punishment at a fine of $100 and sixty days confinement in the county jail.
1. The testimony in the case is quite conflicting. The witness H. Starbeck testified directly and positively to a sale by appellant to one Kelly of two quarts of whisky for five dollars, and that while the parties were in a room in a hotel playing cards the whisky was delivered and the money paid. Other witnesses testify that the whisky was in fact produced by appellant, but it was a matter of accommodation, and was not a sale. Some of them say that Kelly did give appellant five dollars about the time the whisky was brought in, but that it was in the nature of a gift or loan to enable him to take part in the gambling then in progress. We deem it unnecessary to review the facts in detail. The testimony of Starbeck makes a clear case. It must be confessed that the testimony of the other witnesses is calculated to challenge belief, and it is not to be wondered that the jury credited the testimony of Starbeck.
2. During the progress of the trial and after he had testified and had been dismissed from the stand as a witness, counsel for appellant requested the court to permit them to recall the witness Starbeck, and ask him if it was not true that he was mad at the *Page 543 defendant, and if he did not say at the depot on the Monday morning after he and appellant played cards in the hotel that he would get even with the defendant. That at the time counsel informed the court that they wished to ask said witness this question for the purpose of impeaching said witness, who would say that he did not make any such statement, and that they proposed to show and could show by the express agent at Hamlin that he did make the statement above referred to, and that the court refused to permit the witness to be recalled. The bill does not show when this matter occurred or how it arose. Starbeck was examined at considerable length both on direct examination, cross-examination and re-examination. It is not shown when counsel came into possession of information touching the conversation inquired about, nor is it shown in the bill that Starbeck was accessible or that the proceedings of the court would not have been delayed perhaps unnecessarily to have had him recalled. Matters of this sort are so peculiarly within the discretion of the trial judge that we feel we should not reverse a case unless all the facts were shown and it were apparent that there had been such an abuse of the court's discretion as would authorize and justify us in interfering. In this connection it is to be noted that the express agent named in the bill was in fact introduced and testified on the stand to all the matters referred to in the bill. So that in any event we feel that there could have been no injury done appellant by the refusal of the court to permit the recall of Starbeck.
3. Counsel further raise the question in their brief that there was no proof offered that the local option law was in effect in Jones County. This matter was not raised or hinted at in their motion for a new trial. There was no formal orders, judgments or decrees of the Commissioners Court of Jones County, admitted in evidence, putting local option in effect therein. It was proven by the witness Starbeck, without objection, that local option was in effect in Jones. County. We have heretofore held (Manning v. State, 81 S.W. Rep., 957), that even a charge of the court which misdirects the jury in regard to the punishment is not reversible error unless excepted to and this case has been followed, and generally we have disregarded grounds of reversal and refused to reverse where the matter is not called to the attention of the court below, either by exception or in the motion for new trial. In this connection we feel that we should say that, while under the provisions of the law enacted by the last Legislature, contests of local option elections must be timely had, and in the absence of such contest their regularity would be presumed, the court should, nevertheless, in every case require the introduction of formal orders of the commissioners court of their several counties putting local option into effect. However, where a party stands by and permits the proof without objection to be made by parol testimony and makes and raises no question touching the *Page 544 matter in his motion for a new trial or by exception, and waits to raise the matter on appeal, we do not feel that he should be then heard to complain. The judgment is affirmed.
Affirmed.
ON REHEARING. March 17, 1909.