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69 Tex. Crim. 175

154 S.W 559

Pierce v. State

Court of Criminal Appeals of Texas

Decided February 19, 1913

Court of Criminal Appeals of Texas · decided 1913-02-19

<p>1. —Occupation—Selling Intoxicating Liquors—Local Option—Continuance.</p> <p>Where defendant’s application for continuance showed, in connection with the record on appeal, that the alleged absent testimony was not probably true and was of an impeaching character, there was no error in overruling the motion. Following Bolton v. State, 43 S. W. Rep., 1010.</p> <p>2. —Same—Evidence—Practice in District Court.</p> <p>Where defendant had sought to impeach the State’s witness, there was no error to admit testimony in support of the witness, and this can be done at any time before the argument is concluded, under Article 698, Code Criminal Procedure.</p> <p>3. —Same—Evidence—Bill of Exceptions.</p> <p>Where defendant complained that the court permitted the introduction of part of his application for a continuance, but the court’s qualification showed that this was not true; that only a reference Was made thereto in argument, there was no error.</p> <p>4. —Same—Motion for New Trial—General Objections.</p> <p>An objection that the verdict is contrary to the law and the evidence only presents the question, that the testimony does not sustain the verdict, for review.</p> <p>5. —Same—Remarks by Judge.</p> <p>. Where it appeared on trial that no jury had been empaneled, and it was not shown that anyone who served on the jury heard the remark by the judge to which objection was made, there was no error.</p> <p>6. —Same—Charge of Court—Occupation—Number of Sales—Harmless Error.</p> <p>Where the court in his charge instructed the jury that two sales must be proved to have been made within two years instead of three years, in defining as to what constituted pursuing the occupation of selling liquor in local option territory, such error was harmless, the charge being otherwise correct.</p> <p>7. —Same—Charge of Court—Pursuing Occupation.</p> <p>Where the charge of the court was not subject to the criticism that it virtuallly instructed the jury that if they believed that the defendant made one sale of intoxicating liquors on either of the said above mentioned dates to find him guilty of the offense of pursuing the occupation, there was no error, when considered as a whole; the jury being required to find at least two sales while he was pursuing such occupation.</p> <p>8. —Same—Charge of Court—Definition of Occupation.</p> <p>Where no part of the court’s charge authorized the jury to convict defendant of pursuing the business or occupation of making one sale of intoxicating liquors in local territory, but on the whole, instructed the jury that they must find that defendant was engaged in the business or occupation and made at least two sales, there was no error, although the definition of occupation might have been fuller; yet, no requested charge was requested.</p> <p>9. —Same—Charge of Court—Druggist.</p> <p>Where there was no evidence that the defendant was a druggist or had license to sell on prescription, and that idea was excluded entirely, the criticism that the court’s charge authorized the jury to convict a druggist who sells intoxicating liquors on prescription is wholly untenable.</p> <p>10. —Same—Charge of Court—Harmless Error.</p> <p>Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court erroneously instructed the jury that in ease of a reasonable doubt, they might convict defendant for a violation of the local option law if he made one sale under it, and which subjected him to a fine and confinement in the county jail, the error was harmless, as he was not convicted of that offense and the same is entirely distinct from the one for which he was tried and convicted.</p> <p>11. —Same—Law In Force—Waiver.</p> <p>Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the defendant waived the reading of the orders of the Commissioners Court pertaining to local option being in force in the county of the prosecution and admitted their introduction in evidence, he could not claim, in his motion for rehearing in this court, that there was no evidence to show that local option was in force in said county; especially, where the court’s charge assumed such fact and no objection was made thereto in motion for new trial.</p>

Decided 1913-02-19

¶1 ON REHEARING, MARCH 19, 1913.

HARPER, Judge.

¶2 Appellant has filed a motion for rehearing presenting only one question, and one that was not presented in appellant’s brief, nor in his motion for new trial. In fact it is first suggested by him in this motion for rehearing in this court, and that is: “There is no evidence to show local option was in force in Newton County, nor was it admitted that local option was in force in Newton County. ’ ’ If this is true, it is strange that appellant did not raise that question in the trial of the case, and did not assign as error the part of the charge of the court wherein the court instructed the jury that prohibition was in force in Newton County. Of course, if appellant’s contention, even though raised this late, is correct it would be fatal to the conviction, because this court, and no other court, can take judicial notice of those portions of this State in which local option has been adopted, but in the trial of the case it must be proven that local option has been adopted. However, in this record, we think this fact was proven in the trial of the case, and appellant’s attempt at this late hour to take advantage of perhaps an inapt expression in the statement of facts showing that fact, will not be allowed. In the statement of facts agreed to by appellant’s counsel, it is shown that when the State introduced in evidence the orders of the Commissioners Court showing that local option had been adopted, defendant made the following admission: “Deft. It is admitted that *183 the orders pertaining to local option being in force be considered read, that is, we waive the reading of the orders.”

¶3 This clearly shows that the orders were introduced in evidence, and that they showed that local option was in force in that county. In his charge the court instructed the jury: “The orders of the Commissioners Court read before you establishes that the law prohibiting the sale of intoxicating liquors in Newton County, Texas, is in force, and that said law is now and was at the time of the alleged sales in force and that it was unlawful to make sales, if any were made, as alleged.”

¶4 As stated herein before, appellant in his motion for new trial, made no complaint of this paragraph of the court’s charge, and in said motion there is no allegation that this fact had not been proven, and in the brief filed in this court there was no such contention, and it is first attempted to be raised in a motion for rehearing in this court.

¶5 Defendant having made the admission and statement the record shows he made in the court below, will not now be heard to complain that the record is not more explicit.

¶6 The motion for rehearing is overruled.

¶7 Overruled.

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