Hester v. State , 97 Tex. Crim. 510 ( 1923 )

Appellant was convicted in the District Court of Kent County of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.

The evidence shows appellant in possession of a number of bottles of whisky; the jury were justified in concluding that he had same in violation of law.

There are three bills of exception in the record, the first of which complains of the refusal of a peremptory instruction in favor of the accused; the second complains of testimony of the county attorney of Kent County to the effect that he requested the sheriff and the constable to go with him down to the house where appellant was found in possession of the liquor. The complaint is of a matter that has no possible injurious effect upon appellant's case. The men went together down to said house and the fact that the county attorney asked them to go could operate to produce no injury. Appellant's remaining bill of exceptions complains of the testimony of the sheriff in saying that he was called by the county attorney in March to come over to Jayton on a certain Saturday night and when that time arrived he was there and accompanied the county attorney down to said house. The complaint evidenced by the two latter bills of exception seems based on the proposition that what was said and done was out of the presence and hearing of the appellant and he was not bound thereby. Granted. Illustrations without number might be multiplied of things that are done out of the presence and hearing of the appellant which are admissible. Things that are said under such conditions would appear to be hearsay and might well be omitted on the trial, but where they are of matters from which no reasonable mind could conclude any possible injury, this court will not reverse.

An affirmance is ordered.

Affirmed.

ON REHEARING. June 4, 1924.