Green v. State , 94 Tex. Crim. 637 ( 1923 )

Appellant was convicted in the District Court of Collin County of the offense of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

We consider but the single question of the alleged error in refusing a new trial. The conviction rested upon the testimony of Jim Williams who said he bought four pints of liquor from appellant on the date relied on by the State, paying him $1.50 for each pint. In addition to the testimony of this witness the State offered as part of its rebuttal the testimony of the constable of the precinct in which appellant lived, who said that on the morning after the date of the alleged sale he searched the house of appellant and found about a tablespoonful of whisky in a bottle between the kitchen and the smoke-house, and in the smoke-house found a copper pot or boiler such as constitutes part of a still, and found about a fourth of a barrel of mash. This was the State's case.

In support of his motion for new trial appellant attached an affidavit that State witness Williams had retracted and stated that his testimony as given on the trial was untrue. The learned trial court heard evidence in support of this motion and on said hearing Jim Williams appeared and swore that his testimony as given on the trial was false, and that he in fact did not buy any liquor from appellant as testified to by him upon the trial. The motion for new trial was overruled. As stated, the only error claimed and here discussed is the refusal of said new trial.

In support of the contention that the new trial should have been granted appellant cites Mann v. State, 44 Tex. 642; Hill v. State, 55 Tex.Crim. Rep., 117 S.W. Rep. 134; Heskew v. State, 14 Texas Crim. App. 606. The State contends that these are not soundly in point and cites Estrada v. State, 15 S.W. Rep. 645; McMahan v. State, 16 S.W. Rep. 171; Brown v. State, 58 S.W. Rep. 130; Carter v. State, 75 Tex.Crim. Rep., 170 S.W. Rep. 740; Atkinson v. State, 93 Tex.Crim. Rep., 247 S.W. Rep. 286.

We are of opinion that the conviction should not stand. We do not care to lengthen the opinion by a discussion of the cases mentioned, but believe them to announce the rule that when the State is compelled to rely for its conviction upon the testimony of a witness who afterward and before the motion for new trial is acted upon, retracts the truth of said testimony and himself appears before the court and under oath affirms that the testimony as given by him originally was not true; and when the facts show that without such testimony the State has no case, the conviction should be set aside. In McConnell v. State,82 Tex. Crim. 634, this court held that it being satisfactorily shown that the prosecuting witness had retracted the inculpatory testimony given by him at the trial and it being further shown that said witness had been convicted of a felony, the motion for new trial should have been granted.

The Assistant Attorney General representing the State with this court is tremendously crowded with work, and we desire to commend the action of the county attorney of Collin County in following this case to this court and here presenting and filing a brief thoroughly discussing the authorities on both sides of this question.

For the reason stated the judgment will be reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. June 20, 1923.