Shaddix v. State , 90 Tex. Crim. 431 ( 1921 )

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

There appears in the record what purports to be a statement of facts. Same is not approved by the trial court and hence cannot be considered by us. Hardee v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 610; Flagg v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 852; Vernon's C.C.P., p. 819, and authorities cited.

What purports to be a motion of appellant to leave to withdraw said statement of facts in order to have same authenticated, is among the papers, but is not filed. Our Assistant Attorney General contends that same is wholly insufficient and shows no good reason for granting the request therein contained. We are of opinion his objection to said motion is well taken, and that same should not be granted. Said motion is not sworn to as to the facts therein set forth, and not enough facts are stated to justify us in granting the request. From the transcript in the record we learn that the instant case was tried on March 24, 1921, and that the trial term of the court below ended April 15, 1921. Said motion recites that the stenographer sent to appellant's counsel on July 5, 1921, the said statement of facts and that he could not get in touch with the trial court, who was away on his vacation, within the time allowed by law for the filing of such statement of facts in this court. July 5th, 1921, was two months and more than twenty days after the adjournment of the trial court. Said statement of facts contains only about forty pages and would not appear to have required any great length of time for the preparation thereof. No effort is made in said motion to show any reason or excuse for waiting from March 24th until July to get from the stenographer said statement of facts. For aught we know from the motion, no application therefor was made to the stenographer. He may have had ample time in the long interim in which to have prepared said statement of facts if properly requested. One seeking to excuse an apparent lack of diligence must furnish this court some reason for accepting such excuse.

By a bill of exceptions appellant complains that talesmen to complete the trial jury were summoned by the sheriff, he being a State witness, and that certain named talesmen so summoned were strong prohibitionists. No fact appears in said bill reflecting any effort of the sheriff to tamper with or influence said jurors, and the trial court qualifies said bill by stating that the jurors were examined as to their qualification by appellant and no objection made to them until after they were sworn to serve. The bill shows no error. We know of no reason why a prohibitionist or one of opposite views ipso facto is disqualified as a juror in any kind of a case. If on his voirdire it should appear that he entertained prejudice, that would present a different question.

Testimony of one who found an illicit still upon the premises of another, to the fact of such finding, — is not subject to the objection that there was no search warrant, and that the parties so finding said still were trespassers. One simply on the premises of another is not a trespasser under our law unless guilty of some overt act or in disregard of some express forbiddance.

That the State used witnesses in rebuttal whose names were not on the indictment would not seem to present any reversible error. We are unable to see how testimony properly rebuttal in character could be legally a surprise. That the accused did not know of the State's possession of such testimony, does not amount to what in law would be deemed a surprise.

A statement by a State witness while being cross-examined by the accused, which was not in response to any question asked, was properly excluded by the trial court upon request. The court's qualification to this bill of exceptions states that, "This testimony was elicited from the witness by defendant's counsel." If true, this fact would in any event destroy the purported effect of the bill of exceptions.

Appellant's special charge that the burden was on the State to show that the liquor in question was not manufactured for one of the purposes excepted by statute, was properly refused. P. Robert v. State, No. 5970, 133, decided at this term.

Bill of exceptions No. 6 to the rebuttal testimony of certain witnesses, cannot be sustained because of the absence of a statement of facts and of the further fact that no sufficient showing of inadmissibility appears from the statements of the bill.

In the absence of a statement of facts the sufficiency of the evidence to support the verdict, cannot be reviewed by us.

No error appearing in the record the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. December 14, 1921.