Cavenar v. State

Court of Criminal Appeals of Texas

Cavenar v. State

262 S.W. 486, 97 Tex. Crim. 542, 1923 Tex. Crim. App. LEXIS 904

CourtCourt of Criminal Appeals of Texas

DecidedDecember 12, 1923

DocketNo. 7857.

StatusPublished

This text of 262 S.W. 486 (Cavenar 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

Cavenar v. State, 262 S.W. 486, 97 Tex. Crim. 542, 1923 Tex. Crim. App. LEXIS 904 (Tex. 1923).

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Opinions

LATTIMORE, Judge.

Appellant was convicted in the District Court of Robertson County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

From the record we learn that appellant had but recently moved upon the premises occupied by him and on which was discovered a still. Appellant’s two sons were in the process of moving their household goods and other effects to the neighborhood where appellant lived, at or about the time of the arrest herein and according to State witnesses Beck, the sons had just walked up to the still before the officers came. On the day in question two State witnesses appeared at the place where said still was in operation. As they approached appellant went away, there being some little divergence in opinion as to his method and manner of living.

The State introduced in evidence a statement made by one of ap- • pellant’s sons some little time after appellant had gone away from the still. This was objected to as being out of the presence of the appellant and in no way binding upon him. There is no proof in the record from which an acting together of appellant and his sons in the matter of the manufacture of liquor at the still in question, could be inferred. The statement attributed to the son was capable of injurious effect upon the minds of the jury. In our opinion the testimony was obnoxious to the rule forbidding the introduction of the statements of third parties made out of the presence and hearing of the accused and, thérefore, not binding upon him.

Many of the bills of exception reserved by appellant are in question and answer form and for that reason can not be considered by us.

Appellant complains of the introduction of various statements made by witnesses for the State, upon re-direct examination, it being asserted on behalf of the defense that said answers were inadmissible as supporting prior consistent statements made by said witnesses. Inasmuch as this will not likely occur upon another trial we forbear any discussion.

Believing that the admission of the material statement of appellant’s son not in his presence and hearing, was prejudicial error, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

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LATTIMORE, Judge.

Appellant was convicted in the District Court of Robertson County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

From the record we learn that appellant had but recently moved upon the premises occupied by him and on which was discovered a still. Appellant’s two sons were in the process of moving their household goods and other effects to the neighborhood where appellant lived, at or about the time of the arrest herein and according to State witnesses Beck, the sons had just walked up to the still before the officers came. On the day in question two State witnesses appeared at the place where said still was in operation. As they approached appellant went away, there being some little divergence in opinion as to his method and manner of living.

The State introduced in evidence a statement made by one of ap- • pellant’s sons some little time after appellant had gone away from the still. This was objected to as being out of the presence of the appellant and in no way binding upon him. There is no proof in the record from which an acting together of appellant and his sons in the matter of the manufacture of liquor at the still in question, could be inferred. The statement attributed to the son was capable of injurious effect upon the minds of the jury. In our opinion the testimony was obnoxious to the rule forbidding the introduction of the statements of third parties made out of the presence and hearing of the accused and, thérefore, not binding upon him.

Many of the bills of exception reserved by appellant are in question and answer form and for that reason can not be considered by us.

Appellant complains of the introduction of various statements made by witnesses for the State, upon re-direct examination, it being asserted on behalf of the defense that said answers were inadmissible as supporting prior consistent statements made by said witnesses. Inasmuch as this will not likely occur upon another trial we forbear any discussion.

Believing that the admission of the material statement of appellant’s son not in his presence and hearing, was prejudicial error, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

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262 S.W. 486, 97 Tex. Crim. 542, 1923 Tex. Crim. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavenar-v-state-texcrimapp-1923.