Ragusin v. State , 105 Tex. Crim. 218 ( 1926 )

Conviction in District Court of Matagorda County for selling intoxicating liquor, punishment one year in the penitentiary.

Our attention is called to the fact that in the judgment and sentence in this case the offense for which conviction was had is referred to as "violation of the liquor law." There is no such offense known to the laws of this state. Appellant was charged with selling intoxicating liquor. The verdict of the jury found appellant guilty as charged. The judgment and sentence will be corrected to conform with the verdict, and appellant will be adjudged guilty of selling intoxicating liquor as found by the jury, and the sentence will be reformed to follow said judgment.

There are three bills of exception. The first attacks an answer made by a state witness to a question propounded by appellant's counsel on cross-examination, the complaint being that the answer was not responsive to the question, and that the court refused to strike out the answer upon appellant's motion. The question referred to is as follows: "Your memory is as good about what you paid him for and about how much you got as it is about everything else, is it not?" To this the District Attorney objected on the ground that it called for a conclusion of the witness, but the objection being overruled, the witness stated: "Well, I have made a good many off him and it is a hard matter to remember them all that length of time." As we view the matter, the answer of the witness, while not strictly responsive, appears to convey the idea that his memory was not clear as to all the transactions because of the length of time and the number of transactions. Just what the witness meant by the answer does not appear in the testimony or in any statement of the facts appearing in the bill of exceptions. We do not believe the matter of the failure to make an answer different in words and more exactly responsive, could injuriously affect appellant's rights.

The second bill of exceptions is qualified by the court and under the qualification we are clearly of opinion that no injury is shown by the bill.

The remaining bill of exceptions is to the fact that the court refused to give appellant time to prepare a charge instructing the jury not to consider certain argument made by state's counsel. The qualification to this bill shows that the court informed appellant's counsel that he would not give a charge instructing the jury not to consider the argument, but would give to appellant his full bill of exceptions to the making of the objectionable argument and to the refusal of the charge which appellant claimed he desired to prepare. This in effect amounted to no more than a refusal of the court to instruct the jury not to consider the argument referred to. The argument was merely the interpretation put upon testimony by the state's attorney and represented no more than his opinion concerning its effect. We do not believe the matter presents any error.

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

Affirmed.