Schoennerstedt v. State , 55 Tex. Crim. 638 ( 1909 )

At a recent day of the present term the judgment in this case was reversed and the cause remanded on the failure of the court to charge upon one of the phases of the law suggested by the evidence. The State files a motion for rehearing on the ground that appellant did not present written instructions covering this theory of the evidence. An inspection of the record discloses that this contention is correct and the record does not contain any written requested instructions. The case was not briefed by either party and this suggestion is made by the State on motion for rehearing. We find that the authorities sustain the contention of the State. See Woods v. State, 75 S.W. Rep., 37.

There is another question not passed on in the former decision which, perhaps, in view of granting the rehearing, it would be well enough to notice. Appellant took the witness stand in his own behalf and was asked by the county attorney on cross-examination the following question: "Have you United States Malt Liquor Dealers' license posted or tacked on a certain house on your premises where beer is stored, and did you get the beer out of this house that you sold B.E. Frazier?" Appellant replied: "There is a United States Malt Liquor Dealers' license posted or tacked on a certain house on my premises, and I got the beer I let Frazier have out of this house." Various objections were urged to the introduction of this testimony. That it is immaterial, irrelevant and inadmissible for any purpose, and further that there was no evidence whatever that said United States Malt Liquor Dealers' license was issued to the defendant, nor was there any evidence whatever as to the date of the sale or the expiration of the license and the admission of the testimony was dearly prejudicial, etc. The fact that a United States Liquor Dealers' license was tacked up in the premises owned or operated by the accused is admissible. The objections stated that appellant was not shown to have taken out a liquor dealers' license, or the date of it, if he did take out such license, are matters of fact and can not be urged simply as grounds of exception. If appellant desired to prove in this connection the fact, if it was a fact, that appellant had or had not taken out license, should have been shown by the bill of exceptions and not urged as a ground of exception. We are of opinion, however, that inasmuch as liquor dealers are required by law to post their license in a conspicuous place in their house of business that it is a fact that it may be proved such license was so posted. If as a matter of fact the license was not taken out for the time involved in this transaction, then that could as well be shown. Such a statement would not be taken as a ground of objection unless the facts showed that the license did not cover the specified time. Of course, the license would not be admissible as evidence or the fact that they were posted up, would be equally inadmissible, if, as a matter af fact, the license did not cover the time involved in this transaction. In order to make the posting of the license a fact admissible in evidence such license would have to involve the time, or cover the time so as to bring this transaction within it, but this can not be availed of by simply stating it as a ground of objection.

The motion for rehearing is granted, the reversal set aside and the judgment is now affirmed.

Affirmed.