Opinion
No. 19457.
Delivered March 3, 1938.
1. — Evidence — Rule Stated.
An accused may not bring out objectionable testimony upon cross-examination and then predicate error upon its reception.
2. — Intoxicating Liquor (Sale in Dry Area) — Evidence.
Bill of exceptions showing that on cross-examination of State's witness (in prosecution for selling whisky in a dry area) defendant's counsel asked said witness why he went to defendant's cafe and witness replied that he had information that whisky was being sold in said cafe, which reply was withdrawn from consideration of the jury at defendant's request, held not to present reversible error.
3. — Same.
In prosecution for selling whisky in a dry area, testimony of State's witness that he had, before taking the stand, tasted the whisky which was purchased at defendant's cafe and that he knew it was the same bottle because it had defendant's name on label, held not to call for reversal as hearsay where label was merely referred to, to identify the whisky, and was not introduced in evidence.
4. — Intoxicating Liquor (Sale in Dry Area) — Evidence — Election.
In prosecution for selling whisky in a dry area, to-wit, Johnson County, it was not necessary for the State to prove that no subsequent election had been held in said county legalizing the sale of intoxicating liquor, since such matter was defensive.
5. — Inspectors of Liquor Control Board — Accomplice Witnesses.
Inspectors of the Liquor Control Board who purchased whisky from defendant in a dry area were not accomplice witnesses whose testimony was required to be corroborated to sustain conviction.
6. — Intoxicating Liquor (Sale in Dry Area) — Charge.
In prosecution for selling whisky in a dry area, question of defendant's guilt, under the evidence, held properly submitted to the jury.
Appeal from the County Court of Johnson County. Hon. J. P. Seroyer, Judge.
Appeal from conviction for selling whisky in a dry area; penalty, fine of $100.
Affirmed.
The opinion states the case.
Penn J. Jackson, of Cleburne, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is selling whisky in a dry area; the punishment, a fine of $100.
Appellant operated a cafe in Cleburne, Texas. Porter L. Williams, an inspector of the Texas Liquor Control Board, testified that he went to appellant's cafe on the 27th day of January, 1937, and purchased a pint of whisky from appellant. H. D. Allen, who was also an inspector of the Liquor Control Board, was outside the cafe when the purchase was made. He testified that he did not know the purpose of Williams in entering the cafe. However, he said that when Williams came out he brought a pint of whisky with him.
It is shown in bill of exception No. 1 that, on cross-examination, appellant's counsel, in substance, asked Williams why he went to the cafe. His reply was he had information that whisky was being sold in said cafe. Appellant's request that the answer of the witness be withdrawn from the consideration of the jury was granted. Under the circumstances, we are unable to reach the conclusion that reversible error is presented. It is the rule that the accused may not bring out objectionable testimony and then predicate error upon its reception. Crowley v. State, 35 S.W.2d 437.
It is shown in bill of exception No. 2 that Porter L. Williams testified without objection that he carried the whisky he purchased from appellant to Fort Worth and had the bottle labeled showing the date the purchase was made. When H. D. Allen was testifying he stated that before taking the stand he had tasted the whisky that Williams had purchased from the Lucas cafe. Further, he testified that he knew it was the same bottle because it had "Sam Lucas" on it. To the last statement of the witness the appellant objected on the ground that it was hearsay. The bill, as qualified, shows that the label was not introduced in evidence, and was merely referred to to identify the whisky that had been brought from Fort Worth. We think the bill, as qualified, fails to reflect reversible error.
There is no merit in appellant's contention that it was incumbent upon the State to prove that no subsequent elections had been held in Johnson County legalizing the sale of intoxicating liquor. This was a defensive matter. Stevens v. State, 110 S.W.2d 906.
Stevens v. State, supra, is also authority supporting our conclusion that the inspectors were not accomplice witnesses.
Appellant's motion for an instructed verdict was properly overruled. The jury were warranted in rejecting appellant's testimony to the effect that he had no whisky in his cafe and made no sale to Williams on the occasion in question.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.