Logan v. State (27 S.W.2d 171, 1930)

LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in tbe penitentiary.

Tbe trial term of tbe court below ended July 31, 1929. In bis order overruling appellant’s motion for new* itrial, tbei court granted “tbe statutory time for filing bills of exception.” Said statutory time is “thirty days after tbe day of adjournment of court.” See article 760, C. C. P. This period expired August 30,1929. On September 7tb thereafter tbe court entered an extending order. This he bad no power to do. Stewart v. State, 108 Tex. Cr. R. 661, 2 S.W.(2d) 440; Míreles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418; Lattimore v. State, 109 Tex. Cr. R. 319, 4 S.W.(2d) 652. There are numerous similar holdings. Appellant’s bills of exception were filed September 30th. They were filed too late, and óannot be considered.

According to tbe state’s proof appellant sold one Nash a pint of whisky on November 24, 1928, in Fannin county, Tex. This made out tbe case charged in tbe indictment. All questions of controversy over facts were settled by tbe verdict of tbe jury.

Finding no error in the record, tbe judgment will be affirmed.

On Motion for Rehearing.

We overlooked tbe fact that tbe order extending tbe time for filing tbe bills of exceptions bore a date different from tbe filing of the paper containing same on September 7th. It now appears that tbe order extending said time was made within tbe thirty-day period after tbe adjournment of tbe trial term.

There are a number of bills of exceptions, none of which present error, but bill of exceptions No. 9, complaining of tbe argument of tbe prosecuting attorney, raises a difficult question. Tbe appellant’s principal witness was Bob Hembree. Tbe testimony of this witness was corroborative of that of tbe appellant, and be seemed to occupy tbe attitude of a disinterested witness. If tbe jury believed bis testimony, same made a very grave attack upon tbe state’s case. In tbe beginning of bis testimony Mr. Hembree said that be was chief of police at Honey Grove for five or six years and a constable of one of tbe precincts in Lamar county for four years. It is set forth in said bill of exceptions that tbe prosecuting attorney stated to tbe jury that Mr. Hembree bad never been a peace officer in Honey Grove or chief of police in Honey Grove; that be (tbe prosecuting attorney) bad lived here and knew that Hem-bree bad never been such chief of police, and that be knew that tbe witness Hembree did not tell tbe truth. This bill was approved by tbe trial court with tbe qualification that there was no issue as to whether tbe witness Hembree bad been a police chief at Honey Grove.

This court has said in many cases that, if the prosecuting attorney desires to give testimony, and tbe record does not show that be has been sworn as a witness, be should not be permitted to testify or state facts in bis argument which might have bearing upon some issue of a material nature before tbe jury. Tbe present case was one for a violation of the'liquor laws of tbe state. It would appear* to materially strengthen tbe appellant’s case if be could call to testify in bis behalf a witness who' bad been elected or appointed as a peace officer of some town or city and who bad been elected as a peace officer of bis precinct. Such fact might be of material value in determining tbe credence given by the jury to tbe testimony of such witness. We are not prepared to say that tbe testimony of Mr. Hembree on this point was not material; in fact, we believe tbe contrary. We are of tbe opinion that tbe argument should not have been permitted; that it was capable of barm to tbe accused. He bad been denied before tbe jury tbe introduction of other testimony submitting his denial of tbe sale of intoxicating liquor charged against him.

For tbe error pointed out tbe judgment will be reversed, and tbe cause remanded.