Smith v. State (160 S.W. 1184, 1913)

HARPER, J.

Appellant was convicted of illegally selling intoxicating liquors in prohibition territory, and his punishment assessed at one year’s confinement in the penitentiary.

There is-only one bill of exceptions in the record, and it relates to the testimony of Oscar Bennett. On direct examination Oscar Bennett testified he purchased a half pint of whisky from appellant, and paid him 50 cents for it. On cross-examination appellant asked him if he did not go to the sister of appellant, Ella Smith, and tell her he had done her brother wrong, and, if she would give him $10, he would get out of the way. Then on redirect examination the state asked the witness, and he was permitted to tell, what did occur on the occasion that he talked with Ella Smith. In this there was no error; appellant having first questioned this witness about the matter, and brought it into the case.

The appellant then introduced the witnesses Ella Smith and Sam Jones, who testified that the prosecuting witness, Oscar Bennett, did come to Ella Smith, and make the statement. The court instructed the jury: “The witnesses Ella Smith and Sam Jones, while testifying, testified to certain statements claimed by them to have been made by the witness Oscar Bennett to the effect, in substance, that he did not buy any whisky from defendant, and you are charged that this testimony was admitted for .the purpose of affecting the credibility of the witness Oscar Bennett, if, in your opinion, it does affect his credibility, and for no other purpose.” Appellant, in his motion, complains that the court erred in thus restricting this testimony, and cites us to the case of Howard v. State, 25 Tex. App. 693, 8 S. W. 929. The charge criticised in that case is far different from the one given in this case, and the charge as here given is not erroneous.

The only other ground alleges the insufficiency of the evidence. A witness swears positively he purchased whisky from appellant, and, while appellant sought to impeach him, and by such means cause the jury to give but little, if any, credence to his testimony, yet the jury evidently believed him, and not the impeaching witnesses.

The judgment is affirmed.