Cox v. State

MORRISON, Judge.

The offense is the unlawful sale of whiskey in a dry area, prior convictions being alleged for the purpose of enhancing the penalty; the punishment, 30 months in jail and a $1,000.00 fine.

One Barrett, an officer of the Texas Liquor Control Board, testified that on the day charged in the information he went to appellant’s home and bought certain whiskey. He further stated that Mrs. Cox, appellant’s wife, was present at the time the purchase was made.

*53Appellant did not testify, but offered his wife as a witness who testified that she was a school teacher and that on the day in question Barrett had come to their residence and tried to buy some whiskey but denied that her husband had sold him any.

In cross-examination, the state asked Mrs. Cox if she had any other means of livelihood than teaching school. She replied that she sold certain handiwork but nothing else. She denied that she had sold Barrett any whiskey.

In rebuttal, the state called Barrett, who testified that some time after the sale involved in the instant prosecution he had bought whiskey from Mrs. Cox herself.

Bill of Exception No. 1 as qualified by the court presents no error.

Bills of Exception Nos. 2 and 3 deal with the introduction of evidence concerning the prior convictions. These bills merely state the grounds of the objection without any certificate from the court that the facts which form the basis of the objection are true. A bill of exception must present a question for review, and that is not done by a mere recitation of the objection made. Tex. Digest Crim. Law 1092 (14).

What has been said about the preceding two bills of exception applies to Bill of Exception No. 4; however, the bill merely reflects proof of the prior convictions alleged to enhance the punishment, and the fact that the witness used the expression “bootlegging” reflects no error.

Bill of exception No. 5 complains of the cross-examination of Mrs. Cox, as shown above. The objections were that such testimony was:

1. Not germane to anything asked on direct examination.

2. That it was entirely a separate matter.

3. That it was a new matter not relevant to matters brought out on direct examination.

It will be noted that the bill does not show the answer given by the witness and therefore presents nothing for review. 4 Tex. Juris., Sec. 211, p. 303. However, it will be observed that appellant considered the matter as one in which the cross-examination *54of the wife went beyond the scope of her examination in chief. This observation is fortified by the position taken by appellant in his brief. No such question is here presented.

Had the objection been that it was an effort to impeach a witness by proof of other offenses not involving moral turpitude, then an entirely different question would have been presented. The objection as made did not call the trial court’s attention to the above rule of evidence, and therefore the same is not before us.

What has been said in connection with Bill of Exception No. 5 applies to the objections set forth in Bill of Exception No. 6 relating to the rebuttal testimony of the witness Barrett.

Bill of Exception No. 7 complains that the court in his charge submitted only the enhanced punishment and did not tell the jury that they might find appellant guilty of the primary offense only.

This being a misdemeanor case, the appellant is required to do three things in order to bring up a question relative to the court’s charge. He must:

1. Object to the charge,

2. Reserve his exception, and

3. Submit a substantially correct requested charge. Lemuel v. State, 155 Tex. Cr. R. 614, 237 S. W. (2d) 982.

He failed to do the latter. However, in this connection, it will be noted that the court charged that appellant’s guilt depended on the jury’s finding beyond a reasonable doubt that he was guilty, not only of the primary offense charged, but also of prior convictions charged in the indictment.

This placed a greater burden upon the state and therefore in that respect was more favorable to appellant, and he cannot here complain. Punchard v. State, 142 Tex. Cr. R. 531, 154 S. W. (2d) 648.

What has been said above disposes of the complaint brought forward in Bill of Exception No. 8.

Bill of Exception No. 9 complains that the trial court orally instructed the jury in answer to a question in writing from them as to where to write their verdict.

*55There is not a sufficient showing in the bill as to what transpired to inform this court of any injury to appellant. What does appear would lead us to conclude that none occurred.

Finding no reversible error, the judgment of the trial court is affirmed.