Opinion
No. 14864.
Delivered March 9, 1932. Rehearing Denied April 6, 1932.
1. — Intoxicating Liquor — Evidence — Alibi.
In prosecution for sale of whisky, the finding by the jury on the issue of alibi will not be disturbed, since there is nothing that suggests an unfair exercise of the right and power confided in them.
2. — Intoxicating Liquor — Variance.
Where it is alleged that the sale of whisky was made to one and the testimony shows that three contributed money for the purchase, the verdict will not be disturbed, since there is no variance.
3. — Charge — Evidence.
In prosecution for sale of whisky, appellant's complaint that the court refused to instruct the jury to return a verdict of not guilty cannot be maintained.
4. — Charge — Agency — Evidence.
In prosecution for sale of whisky, the court would not have been justified in directing a verdict of not guilty on the ground that appellant was only the agent for the purchaser, since, even if the evidence raised the issue, appellant should have asked that the issue of agency be submitted.
5. — Charge — Circumstantial Evidence.
In prosecution for sale of whisky, the court properly refused to submit the law of circumstantial evidence.
ON MOTION FOR REHEARING.6. — Intoxicating Liquor — Newly Discovered — Evidence — Bill of Exception.
Where evidence is heard on motion for new trial based on newly discovered evidence, complaint of the action of the trial court in overruling the motion will not be considered in the absence of a bill of exception bringing forward the evidence heard by the court.
7. — Variance.
In prosecution for sale of whisky, there was no variance between the allegation in the indictment and the proof.
Appeal from the District Court of Wood County. Tried below before the Hon. Walter G. Russell, Judge.
Appeal from a conviction for selling intoxicating liquor; penalty, confinement in the penitentiary for two years.
Affirmed.
The opinion states the case.
Bozeman Cathey, of Quitman, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.
The testimony in this case presents a condition of conflict, that of the state establishing the sale; that of the appellant tending to establish an alibi, which was the defensive theory. The jury are the exclusive judges of the credibility of the witnesses as well as the weight of their testimony, and unless there appears something from which an unfair exercise of the right and power confided in the jury, is shown, we decline to interfere with their conclusions.
We find in the record before us three bills of exception. The first complains of the refusal of the court to instruct the jury peremptorily to return a verdict of not guilty. If we understand the contention in this regard, it is that the testimony shows three boys each contributing money toward the purchase of a quantity of whisky, and that a verdict upon a count alleging a sale to but one of these boys will not support a conviction. This court has held against appellant's contention in the case of McGee v. State, 112 Tex. Crim. 450, 17 S.W.2d 50.
Appellant's second bill of exception also complains of the refusal of the court to instruct the jury to return a verdict of not guilty, appellant's claim being that if he was present at the time alleged and claimed by the state witness, still he was but an agent for the purchasers in procuring for them the said whisky. We find nothing in the record to justify the court in giving such charge. The state witnesses testified that appellant told them that he would get them some whisky; that he told them he would have to have the money, which they gave him, and that he walked around the house and came back in a minute or two with a half gallon of whisky. No request was made of the court to submit the question of agency to the jury, and we regard the testimony as of little import even in raising such issue. Certainly there was no reason for the court giving the peremptory instructions requested by appellant.
The remaining bill of exception presents the proposition that the court erred in refusing to charge the jury on the law of circumstantial evidence. We find nothing in the record calling for such submission.
No error appearing, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.
Appellant insists that we did not discuss an alleged error in the overruling of his motion for new trial based on a claim of newly discovered evidence. We discussed the three bills of exception appearing in the record. There is in the record no bill of exception or statement of facts presenting evidence heard by the trial court upon the hearing of the motion for new trial. It appears that appellant attached to his motion for new trial affidavits of alleged newly discovered witnesses, but the order of the trial court overruling said motion recites: "And the court having heard the said motion and the evidence thereon submitted, is of the opinion that the same should be overruled." In the absence of a bill of exception bringing forward the evidence heard by the court, or the presence in the record of some duly certified statement of facts heard by the court when the motion for new trial was brought before him, this court has uniformly held it will not consider complaint of the action of the court. Humphries v. State, 79 Tex.Crim. Rep., 186 S.W. 332; Reyes v. State, 81 Tex.Crim. Rep., 196 S.W. 532; Odom v. State, 82 Tex.Crim. Rep., 200 S.W. 833; Mitchell v. State, 85 Tex. Crim. 25, 209 S.W. 743; Slade v. State, 85 Tex. Crim. 358, 212 S.W. 661; Parroccini v. State, 90 Tex. Crim. 320, 234 S.W. 671; Wharton v. State, 91 Tex. Crim. 575, 240 S.W. 310; Jaramillo v. State, 93 Tex. Crim. 121, 245 S.W. 926; Rabon v. State, 94 Tex. Crim. 393, 251 S.W. 806; Hughey v. State, 98 Tex. Crim. 413, 265 S.W. 1047; Jasper v. State, 98 Tex. Crim. 521, 266 S.W. 508; Crouchette v. State, 99 Tex. Crim. 572, 271 S.W. 99.
The only other issue submitted in the motion is that we erred in holding there was no variance between the allegation in the indictment and the proof. Upon the authorities cited in our original opinion we were clearly right in declining to sustain this proposition.
The motion for rehearing will be overruled.
Overruled.