Martin v. State , 154 Tex. Crim. 302 ( 1950 )

GRAVES, Judge.

Appellant was convicted of a violation of the liquor laws in a dry area, and by the jury assessed a penalty of one year in the county jail.

The uncontradicted testimony shows that two witnesses saw appellant sell a bottle of whiskey; and there was no denial thereof nor any effort made to show aught to the contrary, no testimony being offered by appellant.

Bill of Exceptions No. 1 relates to the motion for a new trial and its overruling by the trial court, and same will not be considered as a bill.

Bill No. 2 relates to the argument of the county attorney wherein he is alleged to have addressed the jury as follows:

“Gentlemen of the Jury, I want to ask something of you. We must have some jail terms. This bootlegging in Van Zandt County will go from day to day unless you assess a jail term. The only way to stop it is to give this defendant a jail term. You have to assess a jail sentence.”

We think this bill is deficient in that it does not show that such argument was reasonably pertinent to any material issue in this cause. We see no error shown therein. See Moore v. State, 107 Tex. Cr. R. 287, 296 S. W. 308; Jetty v. State 90 Tex. Cr. R. 346, 235 S. W. 589; Anderson v. State, 83 Tex Cr. R. 276, 202 S. W. 953; Ex parte Jetty, 211 S. W. 945.

Bill No. 3 relates to a statement by the county attorney to the jury wherein it is alleged that he said:

“The Sheriff has told you that he did see the defendant sell this whiskey to A. D. Owens.”

Whereupon appellant’s attorney objected as follows:

“To which remark the defendant objected on the ground that the bottle had not been offered in evidence and that there was not sufficient proof that the contents was whiskey and that there was not sufficient evidence that the bottle which was in the view of the jury was the same bottle that the witness had been defendant hand Owens.”

The court then remarked: “Mr. Elliott did identify this bottle and it is in evidence.”

The testimony herein is short, the statement of facts occupying about one page in the record. After the deputy sheriff had testified that he and the sheriff secreted themselves near appeldant’s house, he further said:

“While I was lying down by the fence I saw one A. D. Owens go in at defendant’s back door. I saw the defendant go to his ice box and take out a bottle and deliver it to the said A. D. Owens. I then saw Owens hand the defendant something. Yes, this is the bottle I saw the defendant deliver to Owens. It is a pint bottle of whiskey.”

On cross examination by counsel for the defendant the witness Maxwell testified:

“No, I did not open the bottle. It has not been opened. I did not taste its contents. I did not smell its contents. It looks like whiskey. It is whiskey, and is so tax paid and labeled.”

Again, Sheriff Clyde Elliott, after explaining his presence at the appellant’s house, testified as follows:

“I went to the S. W. side of the house. I stood by the window on the S. W. side of the house. I saw A. D. Owens come in at the back door of defendant’s house. I saw the defendant go to the ice box and take out a this pint bottle. It is whiskey. I saw A. D. Owens pay the defendant for it.”

On cross examination by counsel for the defendant the witness Elliott testified:

“No, I did not open the bottle. No, I didn’t smell of the contents of the bottle. No, I didn’t taste the contents of the bottle. It looks like whiskey. No, the bottle hasn’t been opened.”

The testimony is uncontroverted throughout that both the sheriff and his deputy saw this sale, and that the article delivered by appellant was whiskey. There was no contest thereof, and the incidental remark of the trial court could not possibly have had any bearing on the matter before the jury, nor was there any disagreement relative to the correctness of the statement of the county attorney.

We do not think such a remark of the judge could have operated in any way to-prejudice appellant before the jury. See Rodriguez v. State, 23 Tex. Cr. App. 503, 5 S. W. 255; Dipple v. State, 109 Tex Cr. R. 339, 4 S. W. (2d) 565. See also Vernon’s Ann. Tex. C. C. P., Vol 2, Art. 707 and annotations thereunder.

Appellant complains of the severity of the verdict. The law provides for a punishment of one year in the county jail, and we have no authority to change such law.The punishment being one provided by law, we see no merit in appellant’s contention.

Finding no error shown herein, the judgment is affirmed.