Alexander v. State , 84 Tex. Crim. 75 ( 1918 )

When the original opinion was handed down I did not write my views. I now do so.

I concur with Special Judge Gaines in holding that the extension of the term of court at which the indictment herein was preferred was legal and valid.

The Act of 1905, page 37, creating Hill County a separate district, fixed the term of court to be held on the first Mondays in January, etc., of each year, and prescribed: "Each term of said court shall continue in session until the Saturday before the beginning of the next succeeding term, or until all the business is disposed of." Doubtless the judge of that court and the officers concluded, as the Act said, "shall continue," etc., that it was mandatory and required the court to continue in session as stated, notwithstanding it had no business at all to transact for some time before the expiration of the term; and that the last words quoted, "or until all the business is disposed of," gave the court power to extend the term beyond that fixed, if it had business on hand necessary to be disposed of. The Act of 1915, page 218, amending that of 1905, fixed the term of court on the first Mondays of January, etc., of each year. Then it said: "Each term of said court may continue in session for a period of seven weeks, or until the business is disposed of." Thereby expressly authorizing the court to adjourn even before the seven weeks expired, and thereby removed the peremptory feature of the previous act requiring the court —"shall continue," etc. But at the same time giving the court power and authority to continue the court even longer than the seven weeks if the undisposed of business required it. I think there can be no question of the intent of the Legislature in the matter and that the extension of the term by the judge in this instance was unquestionably a legal term of court during the time of extension.

I concur with Judge Gaines in holding the indictment when attacked in another instance as stated, valid.

I do not concur, but dissent from Judge Gaines' opinion wherein he comments unfavorably upon what he says was the State's principal witness, as an "amateur detective" and that he "associated, for his keep, a character similar to himself." I think his criticism of these witnesses is in no way called for by the testimony or anything that occurred in the trial.

Neither do I concur in that portion of Judge Gaines' opinion wherein he, at least by implication, lauds the appellant in this language: "The jury may have preferred to believe a negro boot-black rather than an amateur detective who encourages and participates with an ignorant negro in the commission of an offense in order that he may furnish evidence thereof for a reward." I commend and approve the employment of detectives by the officers to aid them in ferreting out the violations of our liquor laws. I regard them as a necessity and instead of denouncing them, I commend them.

From Judge Gaines' opinion one would be led to think that the whole testimony of the State was that of one "amateur detective" and another "character similar." But such is not the case. Mr. Carroll, who is the one reproachfully designated as an "amateur detective," was following a legitimate and praiseworthy business, that of a detective to ferret out crime. Before that he had followed honorable employment and no dishonorable at any time. He testified to separate and distinct purchases of intoxicating liquor from appellant, one on each of these dates in 1917: February 28th, March 2d 4th, 9th, 20th, 21st and April 25th. Mr. Franks, the good deputy sheriff of Hill County, testified that he saw Mr. Carroll make the purchases of liquor from appellant on March 2nd and 5th, and tells such a state of circumstances as to show that he also saw the sale on March 9th.

Mr. Currey, who must be the witness referred to as "a character similar to" Carroll, testified that he made separate and distinct purchases of intoxicating liquors from appellant on March 4th, 5th and 7th.

Another witness, Mr. Sealey, who escapes being designated as an "amateur detective" or "a character similar," testified that he bought intoxicating liquor from appellant on March 21st, April 20th, 21st and 25th.

Earl Pryor, who escaped odious designation, testified that he saw Sealey and Carroll buy liquor from appellant on March 23rd.

Mr. Eugene Pryor, another escaped witness, swore that he bought intoxicating liquor from appellant the latter part of April, and he was present when Sealey, while with Pryor, bought whisky from appellant on April 25th.

So that the testimony of the State did not depend upon the testimony of the "amateur detective" or "a character similar." Neither did the detectives, or either of them, induce, nor were they instrumental in having, appellant to commit the crime. What they did was to detect him in the commission of the crime.

The prosecution and conviction was for pursuing the business of selling intoxicating liquor in prohibition territory — bootlegging of the worst type. Judge Ramsey in Fitch v. State,58 Tex. Crim. 366, designated accurately, so far as it goes, a bootlegger of this character, thus: "He was an unfair competitor of the man engaged in the sale of liquor under the restraints and safeguards of law. He was doing business in defiance of law. The youth received no protection at his hands as the law provides in case of the saloon keeper. He gave no bond to keep an orderly house. He might, as he did, ply his business in all hours of the day (and of the night). His place became the refuge for the depraved, a breeding ground of crime, a plague spot, the refuge and shelter of indiscriminate outlawry, and in every way worse and more destructive than the `earthquake's shock or the ocean's storm.' It was this man, as it was a man of like mold in the blind tiger case, that the law sought to reach. It sought not so much to punish him for the sale as to prevent the sale, break up his place of business and drive him out of business. It sought not so much to punish him as to protect society by the imposition of the felony punishment for his continued existence."

Of the two characters, this one just designated by Judge Ramsey, or the "amateur detective," it seems to me the latter would be infinitely preferable to the former.

I do not concur in, but express my dissent from, that portion of Judge Gaines' opinion wherein he held in effect that because of appellant's admission that the bottles which the State's witnesses claimed he had sold to them, contained whisky, that it was reversible error to permit the State to introduce in evidence these bottles of whisky before the jury. The law on the subject is as laid down by Mr. Wharton in 1 Wharton's Crim. Ev., sec. 24c, as follows: "It is error to exclude relevant evidence tending to prove or disprove the issues, although the facts are admitted. Notwithstanding the admission, the prosecution has a right to prove the charge by competent evidence in support of it. Facts when admitted, frequently lose their probative force, and are frequently admitted for this reason alone. Through loose admissions as to such facts, both judge and jury are apt to be confused as to what is and what is not admitted, and are consequently often misled."

Article 1 of our Code of Criminal Procedure expressly declares that the object of the code was intended to embrace rules applicable to the prevention and prosecution of offenses against the laws of the State, and that it seeks, among other things: "1. To adopt measures for preventing the commission of crime. 2. To exclude the offender from all hope of escape. 3. To bring to the investigation of each offense on the trial of the case evidence tending to produce conviction or acquittal." And thereby commands the courts to permit the introduction of all legitimate evidence that would convict or tend to have this effect. The very reason appellant had for trying to prevent the introduction of these bottles of whisky which he had sold to these respective witnesses was to escape conviction and punishment for his crime, because the introduction of this testimony did "bring to the investigation" of this offense evidence tending to produce his conviction.

Upon the whole, it occurs to me that this case should not have been reversed but affirmed.