Venn v. State , 85 Tex. Crim. 158 ( 1919 )

This case comes before us upon appellant's motion for rehearing, and it is courteously but urgently insisted that we were wrong in our former opinion, in holding that the bills of exceptions shown in the record complaining of the admission of the evidence given by the witness Tabb, were not so framed as to entitle the same to our consideration. In view of this insistence of able counsel in said motion we have again examined each of said bills so taken to the testimony of the State showing the receipt by appellant of quantities of whisky on four occasions at dates prior to that of the alleged sale in the instant case. The objections to said evidence appear to be substantially the same in each instance as set out in the bills, to-wit: that it was not admissible under the issues herein; was prejudicial; and showed purchases in quart quantities when the alleged sale was of a pint.

It has been often decided by this court, that to be sufficient a bill of exceptions must set out enough of the proceedings in the court below to make it apparent that error was committed, without the necessity of a search through the remainder of the record for matters to supplement the facts stated in the bill. In other words, all that is necessary to disclose the error complained of must appear from the bill itself. Thompson v. State, 29 Texas Cr. App., 208; Tweedle v. State, 29 Texas Crim. App., 586; McGlasson v. State, 38 Tex.Crim. Rep.; Livar v. State, 26 Texas Crim. App., 115; Wilkerson v. State, 31 Tex. Crim. 86; Mays v. State, 33 Tex.Crim. Rep.; Mank v. State. 44 S.W. Rep., 1101. An inspection of each of these bills discloses that it is impossible for this court to tell therefrom whether the evidence objected to was in fact too remote, for no date is stated in said bills as being that on which the State was attempting to show a sale. It is well settled that the date alleged in the indictment, is not binding, and that the State may show any date within the period of limitation, as the date of the sale on which it elects to seek a conviction. To be sufficient on this point each of said bills should have shown the date of the sale sought to be proven by the State, in order that the question of remoteness of the purchases or receipts complained of might appear. We trust this is clear.

The objection that the evidence objected to was not admissible under the issues herein, is clearly too general. No statement is made in either of the bills, as to what are the issues herein, so that this court might be able from the bill to determine the question raised. It was clearly an issue as to whether or not appellant had any whisky within the period of limitation, which fact he might have denied as far as the allegations of said bills disclose. If, by way of inducement he had claimed that he had gotten some whisky within the period of limitation but no more than he wanted or needed for personal use, it might easily have been an issue as to whether or not he had so received more than he needed for personal use. Illustrations ad infinitum might be multiplied to show various hypotheses as to issues which might have been raised upon such a trial but we do not deem them necessary.

The objection made that the evidence was prejudicial, is not only general but is followed by no statement of the bill showing how or in what manner same was prejudicial. Wilson v. State,63 Tex. Crim. 81; Leggett v. State, 62 Tex.Crim. Rep.; Black v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 1053; Vick v. State, 71 Tex.Crim. Rep.; Eads v. State,76 Tex. Crim. 647, 176 S.W. Rep., 574; Galan v. State,76 Tex. Crim. 619, 177 S.W. Rep., 124. We can see nothing in the remaining part of the objections made, to-wit, that the purchase or receipt was in quarts and the sale only claimed to be in pints.

It is held by our court that if the allegations of the bill be such as to necessitate resort or reference to other parts of the record, in order to ascertain or determine whether the ground set out is or is not well taken, the bill is insufficient. Williams v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 185; Banks v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 406; Campbell v. State, 63 Tex.Crim. Rep., 141 S.W. Rep., 232; Harrison v. State, 69 Tex.Crim. Rep., 153 S.W Rep., 139; Williams v. State, 81 Tex.Crim. Rep., 195 S.W. Rep., 860.

The utmost legal effect that can be given bills of exceptions which are not within themselves sufficient to show not only the objection, but also the facts showing the propriety of such objection, is, to consider them in the light of general demurrers, from which it must follow that every reasonable intendment in favor of the legality of that to which objection is made must be indulged; and, if there be any tenable hypothesis to which such matter so attacked is pertinent, the well-known presumptions in favor of the correctness and legality of the actions of the court, until the contary is shown, will obtain, and such bills, will not be sustained.

The authorities cited in the motion for rehearing bear upon the question of the admissibility of the evidence of the witness Tabb, and not upon the question as to whether the bills of exception properly present here the question of the court's error in admitting such evidence. This disposes of all the questions raised in the motion. It is to be regretted if adherence to the established rules of the courts as to such matters, prevents consideration of bills setting up objections which might have been urged if properly presented in a particular case, but these rules have been so often announced, and the necessity for following them is so obvious we did not go into these questions at length in the original opinion.

No error of this court in its former opinion having been shown, and believing the same to be correct, appellant's motion for rehearing will be overruled.

Overruled.