Sweeney v. State , 59 Tex. Crim. 370 ( 1910 )

Appellant was convicted in the County Court of Grayson County on five separate counts charging him, in substance, with unlawfully keeping and permitting to be kept on premises owned by him and under his control a disorderly house. His punishment was assessed under each count at a fine of $200 and twenty days confinement in the county jail.

The record is a very voluminous one, and contains, among other things, fifty-five bills of exceptions, thirty-eight of which, as the court states, were taken in less than an hour on the testimony of one witness who was being introduced. We have carefully examined the entire record, and think there is no error in the proceedings of the court below for which the judgment should be reversed. Most of the questions raised on the appeal were considered by us and ruled adversely to appellant in the cases of Joliff v. State, 53 Tex.Crim. Rep., and Bumbaugh v. State, 55 Tex.Crim. Rep., 116 S.W. 1152, and other cases following the case first named.

1. Without going into all the matters set up as grounds of the motion, it may be sufficient to say that the court did not err in overruling appellant's motion to require that all the regular jurors drawn for the week be brought into court by process before talesmen were summoned, it appearing that there were eight regular jurors in the box, and in addition that no injury was suffered by the court's action in respect to this matter. Articles 684-86, Code of Criminal Procedure.

2. Complaint is made that the court erred in limiting the cross-examination of the witnesses George Morrow and J.C. Comer. The matters sought to be inquired into were offered for the purpose of affecting the credibility of the witnesses, and related to matters quite remote from the case in hand. We think the discretion and judgment exercised by the court in this matter is not the subject of review by us, and that such discretion was not abused by the trial court. Thompson v. State, 11 Texas Crim. App., 51.

3. During the trial application was made for leave to withdraw announcement of ready, and continue the case on account of surprise at the testimony of a witness introduced by the State. Appellant based this motion on account of the absence and for want of the testimony of one Zolly Lee. It was deficient and defective in that it failed to state that there was no reasonable expectation of securing the testimony of said witness during the present term of the court by a postponement of the trial to a future day thereof. Article 597, Code of Criminal Procedure, subdivision 6; Strickland v. State, 13 Texas Crim. App., 364; Thomas v. State, 17 Texas Crim. App., 437.

4. Nor was there any error committed by the trial court in overruling appellant's application to compel the State to elect on which count in the indictment the conviction would be sought. In misdemeanor cases the rule requiring the prosecution to elect on what counts in an indictment a prosecution will be based is not recognized. Street v. State, 7 Texas Crim. App., 5; Herod v. State, 56 S.W. Rep., 59.

5. Nor was there any error committed in permitting State's counsel to ask leading questions of the witness Love. Under the statement of the court, as confirmed by an examination of the testimony of this witness, he was a reluctant and an unwilling witness, and continually sought to evade questions asked him, and in this condition of affairs, with a view of eliciting the truth, it was well within the discretion of the court to permit counsel for the State to ask leading questions.

6. Nor did the court err in admitting the testimony of the witness Wood to the effect, in substance, that appellant paid taxes on certain fixtures contained in the building in which the business was charged to have been conducted. Wimberly v. State, 53 Tex.Crim. Rep.[53 Tex. Crim. 11]. The presence of appellant at the place was shown by many witnesses, his knowledge of the sale of whisky, and his participation in such sales were shown by a number of witnesses, his ownership of the building was not questioned, that he paid the telephone, light and water bills on same appears, and indeed that he was closely connected with the business either in fact conducting it or knowingly permitting it to be conducted, we are satisfied beyond any doubt or question. The sentence and penalty is a very severe one, and yet, if continually and continuously he was violating the law, the validity of which has more than once been upheld by this court, we ought not, in mere weakness or sympathy, to seek to find an error where none in fact exists. In the condition of the record before us, where it seems every conceivable question was raised, we find no matter of substance upon which we would be justified in reversing the judgment of conviction.

So believing, it is ordered that the judgment of the court below be and the same is hereby in all things affirmed.

Affirmed.

ON REHEARING. May 18, 1910.