Akey v. State

Court of Criminal Appeals of Texas

Akey v. State

246 S.W.2d 169, 156 Tex. Crim. 642, 1951 Tex. Crim. App. LEXIS 1711

CourtCourt of Criminal Appeals of Texas

DecidedDecember 19, 1951

DocketNo. 25592

StatusPublished

This text of 246 S.W.2d 169 (Akey v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Akey v. State, 246 S.W.2d 169, 156 Tex. Crim. 642, 1951 Tex. Crim. App. LEXIS 1711 (Tex. 1951).

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Opinions

DAVIDSON, Judge.

Unlawfully selling whisky in a dry area is the offense; the punishment, a fine of $800 and one year in jail.

It was shown by Fessler’s testimony that appellant sold a pint of whisky to Fessler, an agent of the Texas Liquor Control Board acting as an undercover agent. Such testimony authorized the jury’s conclusion of guilt.

[643]*643W. E. Russell, an agent of the Texas Liquor Control Board who was working with the witness Fessler at the time mentioned, testified that he accompanied Fessler and Smith — whom Fessler was using as a decoy to assist in making the purchase of the whisky — to a point near appellant’s residence where he (Russell) got out of the car. After the alleged purchase, Russell rejoined Fessler and Smith, who he testified had at the time two pints of whisky.

By Russell’s further testimony, the state proved by him that appellant knew him. To such testimony the appellant objected. This objection the trial court sustained, and instructed the jury not to consider the testimony for any purpose. Appellant insists that the testimony was such as to constitute prejudicial error, notwithstanding its withdrawal from the consideration of the jury.

While it is true that the penalty fixed was near the maximum authorized to be inflicted, we cannot say that the withdrawn testimony contributed to that penalty. Moreover, we are not entirely satisfied that the testimony of Russell was not admissible in the first instance. As he was a party to the undercover scheme to entrap the appellant into selling the whisky to Fessler, Russell was entitled to explain why he got out of the car and did not accompany Fessler and Smith to appellant’s home, where the purchase was made, his explanation being that appellant knew him.

It will be remembered that for an offense of the character here charged, a conviction may be had upon the uncorroborated testimony of an accomplice. Art. 666-23a, Sec. (8), Vernon’s P. C.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.

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DAVIDSON, Judge.

Unlawfully selling whisky in a dry area is the offense; the punishment, a fine of $800 and one year in jail.

It was shown by Fessler’s testimony that appellant sold a pint of whisky to Fessler, an agent of the Texas Liquor Control Board acting as an undercover agent. Such testimony authorized the jury’s conclusion of guilt.

[643]*643W. E. Russell, an agent of the Texas Liquor Control Board who was working with the witness Fessler at the time mentioned, testified that he accompanied Fessler and Smith — whom Fessler was using as a decoy to assist in making the purchase of the whisky — to a point near appellant’s residence where he (Russell) got out of the car. After the alleged purchase, Russell rejoined Fessler and Smith, who he testified had at the time two pints of whisky.

By Russell’s further testimony, the state proved by him that appellant knew him. To such testimony the appellant objected. This objection the trial court sustained, and instructed the jury not to consider the testimony for any purpose. Appellant insists that the testimony was such as to constitute prejudicial error, notwithstanding its withdrawal from the consideration of the jury.

While it is true that the penalty fixed was near the maximum authorized to be inflicted, we cannot say that the withdrawn testimony contributed to that penalty. Moreover, we are not entirely satisfied that the testimony of Russell was not admissible in the first instance. As he was a party to the undercover scheme to entrap the appellant into selling the whisky to Fessler, Russell was entitled to explain why he got out of the car and did not accompany Fessler and Smith to appellant’s home, where the purchase was made, his explanation being that appellant knew him.

It will be remembered that for an offense of the character here charged, a conviction may be had upon the uncorroborated testimony of an accomplice. Art. 666-23a, Sec. (8), Vernon’s P. C.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.

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246 S.W.2d 169, 156 Tex. Crim. 642, 1951 Tex. Crim. App. LEXIS 1711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akey-v-state-texcrimapp-1951.