Opinion
No. 12037.
Delivered January 9, 1929. Rehearing denied February 13, 1929.
1. — Sale of Intoxicating Liquor — Impeaching Defendant — Other Offenses — Properly Admitted.
Where the appellant on his trial testified in his own behalf, it was competent for the state to introduce evidence that he had been previously charged with or convicted of a felony, in order to discredit or impeach his testimony. See Romero v. State, 299 S.W. Rep. 904, and other cases cited.
2. — Same — Evidence — Question Propounded — In Good Faith — Not Error.
Where appellant was asked on cross-examination by state's counsel if he had not been in the penitentiary, and the objection to the question was sustained because of remoteness as to time, the question being propounded in good faith, the mere asking of the question would not be a reversible error.
3. — Same — Evidence — Of Other Offenses — Remoteness — Rule Stated.
Whether testimony that the accused had been in the penitentiary is too remote, does not depend entirely upon the lapse of time, but the intervening circumstances bearing upon the question. See Underhill's Crim. Ev. (3d Ed.), Sec. 142; Oates v. State, 149 S.W. Rep. 1194.
4. — Same — Bill of Exception — Not Approved by Trial Judge — Cannot Be Considered.
Where a bill of exception is not approved by the trial judge, such bill will not be considered on appeal.
ON REHEARING.5. — Same — Defensive Theory — Medicinal Purposes — Not Established.
Where prosecuting witness says he bought the liquor for a stimulant, but did not claim to have told the appellant at the time, or at any other time, that he was purchasing the liquor for medicinal purposes, and appellant denied making the sale, the evidence would not establish that the sale was made for medicinal purposes.
6. — Same — New Trial — Discretion of Court — Properly Exercised.
Where appellant complains of being denied a new trial to obtain newly discovered evidence and the record discloses that evidence was heard in the trial court on this issue, but there is no statement in the order of the court overruling the motion of the evidence heard, this court will not revise or hold incorrect the action of the trial court in refusing the new trial, unless the testimony before the trial court be properly brought before us for our examination.
Appeal from the District Court of Kaufman County. Tried below before the Hon. Joel R. Bond, Judge.
Appeal from a conviction for the sale of intoxicating liquor, penalty two years in the penitentiary.
The opinion states the case.
Ross Huffmaster of Kaufman, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.
The State's witness, Dr. H. L. Stewart, the purchaser named in the indictment, testified that he purchased whisky from the appellant. This was denied by the appellant and circumstantially controverted by his wife.
The appellant having testified in his own behalf, it was competent for the State to introduce evidence that he had been previously charged with or convicted of a felony, in order to discredit or impeach his testimony. Romero v. State, 299 S.W. Rep. 904. See also Lights v. State, 21 Tex.Crim. App. 313, and other cases collated in Branch's Ann. Tex. P. C., Sec. 167. There was evidence that there were pending against the appellant several indictments for a felony.
During his cross-examination, the appellant was asked by State's counsel if he had not been in the penitentiary. The court retired the jury and ascertained that the inquiry related to a time which he regarded as too remote to render it relevant. The objection to the question was sustained. There is nothing in the record or in the bill which indicates that the question was not asked in good faith, or which would render the mere asking of the question reversible error. Whether testimony of the character mentioned is too remote does not depend entirely upon the lapse of time but the intervening circumstances bear upon the question. See Underhill's Crim. Evidence, 3rd Ed., Sec. 142; Oates v. State, 149 S.W. Rep. 1194.
The bill in which there is complaint of improper argument of the prosecuting attorney was not approved by the trial judge.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
Appellant insists that we erred in not holding the evidence herein insufficient to sustain a conviction, his point being that the testimony shows that the witness bought from appellant liquor for medicinal purposes. We have carefully examined the facts on this point. Prosecuting witness says he bought the liquor for a stimulant, and that he drank all of it at the time of its purchase. He did not claim to have told appellant at the time, or at any other time, that he was purchasing this liquor for medicinal purposes. Appellant denied making the sale and testified that he positively refused to sell the purchaser any liquor at all. This does not show a sale for medicinal purposes.
Appellant also contends that he should have been granted a new trial in order to obtain newly discovered evidence. The order of the court overruling the motion for new trial recited that the court heard evidence upon the contention. We are bound by the recitals of the order. We have held in many cases that where there is such statement in the order of the court overruling the motion, we will not undertake to revise or hold incorrect the action of the court in refusing a new trial, unless in such case the testimony before the court be properly brought before us for our examination. No effort appears to bring before us the testimony heard by the trial court.
No error appearing, the motion will be overruled.
Overruled.