Ashley v. State

237 S.W.2d 311, 155 Tex. Crim. 534, 1951 Tex. Crim. App. LEXIS 1785

• Court: Court of Criminal Appeals of Texas
• Decided: January 3, 1951
• Docket: 25085
• Status: Published

Opinions

DAVIDSON, Judge.

The offense is the driving, while intoxicated, of an automobile upon a public highway; the punishment, a fine of $50.

The disputed issue of fact was whether appellant was intoxicated at the time he was driving the automobile.

Two highway patrolmen, after detailing the acts and conduct of the appellant, testified that in their opinion appellant was intoxicated. Such testimony was sufficient to warrant the jury’s conclusion of guilt.

The witness Benson, who was in the automobile with appellant at the time he, according to the testimony of the state’s witnesses, was intoxicated, testified that appellant was not intoxicated at that time. His testimony was material, and supported the testimony of the appellant. Upon cross-examination, the witness Benson was asked by state’s counsel the following question:

“As a matter of fact, for the past three hours, you had been having rooster fights, hadn’t you?”

Appellant’s objection to the question was sustained, and the judge orally instructed the jury not to consider it. Appellant contends that reversible error is nevertheless reflected because, by such interrogation, state’s counsel had gotten before the jury the idea that appellant and the witness had been engaged in chicken fighting.

In the light of the facts and the punishment assessed, we are unable to say that appellant was prejudiced by the asking of the question.

The information recites that it is presented upon “the written affidavit of F. R. Land, a competent and creditable person, herewith filed. . . .”

Appellant moved to quash the information and also objected to the reading to the jury of that part of the information above quoted as being a hearsay declaration on the part of the county attorney attesting that F. R. Land was a “competent and creditable”'person. 0

The information was not evidence; it was only the pleading of the prosecuting attorney charging the appellant with a violation of the law. An information is required to be founded upon the affidavit of a creditable person. Art. 415, C.C.P. The prosecuting attorney in using the expression in the instant information was but giving effect to the statute mentioned. Appellant’s contention is without merit.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.