Thomas v. State , 101 Tex. Crim. 144 ( 1925 )

Appellant was convicted in the district court of Montague County for selling intoxicating liquors and his punishment assessed at one year's confinement in the penitentiary.

The record discloses that the appellant filed no exceptions to the charge of the trial court, but complains of the refusal of the court to give his special charges to the jury, and brings forward said complaint in his bills of exception. Neither the special charges nor the bills of exception relating thereto show that they were presented to the court before the general charge was read to the jury, as required by Vernon's C. C. P., Art. 735, and for that reason we are authorized under the law to consider same.

Appellant also complains of the action of the court in not granting him a new trial for the alleged misconduct of the jury while considering their verdict. This bill of exception shows the court heard testimony to the effect that some of the jurors considered statements made by the witnesses on the stand which was supposed to have been testified to by said witnesses in the grand jury; the court after hearing the evidence overruled the motion for a new trial and we see no error therein. Esquivel v. State, 246 S.W. 399; Branch Ann. Statutes, Sect. 575.

The other bills of exception in the record complain of the admission of testimony upon the part of the State to the effect that the sheriff and other State's witnesses testified that they did not find the defendant in the town of Nocona on the day they held a court of inquiry there, alleging that said testimony was injurious to the defendant, in that it did not show that he was guilty of the offense charged against him. We fail to find any harmful error in this particular. The defendant failed to testify in the case, and the evidence showed that about the time inquired about he had left and gone to Oklahoma, and in view of the record we are unable to see how the defendant was injured in this particular.

There is also complaint made of the action of the court in permitting the attorney for the State to exhibit to the State's witnesses the alleged testimony of said witnesses before the grand jury and to ask them concerning their signing same and whispering to said witnesses while upon the witness stand but do not state what the County Attorney said, nor what the statements contained and in this particular said bills are defective and we cannot consider same. Branch Ann. P. C., Secs. 207 and 210.

We have carefully examined the entire record in this case, and are of the opinion that the defendant has had a fair trial, and the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.