Daniels v. State

Court of Criminal Appeals of Texas

Daniels v. State

249 S.W. 223, 94 Tex. Crim. 52, 1923 Tex. Crim. App. LEXIS 23

CourtCourt of Criminal Appeals of Texas

DecidedMarch 14, 1923

DocketNo. 7576.

StatusPublished

This text of 249 S.W. 223 (Daniels 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

Daniels v. State, 249 S.W. 223, 94 Tex. Crim. 52, 1923 Tex. Crim. App. LEXIS 23 (Tex. 1923).

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Opinion

LATTIMORE, Judge.

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

The record contains two bills of exception. One presents the refusal of a continuance. There was absolutely no diligence shown in regard to the two absent witnesses: One of them was alleged to reside in Harris County and the other in Brazoria County. The indictment was presented in February, 1922. The date of the arrest of appellant is not shown. His first subpoena for said witnesses was issued on the 9th of September, 1922. The supbeona for the Harris County witness was returned September 18th, not executed, and the subpeona for the Brazoria county witness was returned on the 23rd of September, not executed. The record shows that this case was called for trial on September 30th and postponed until October 3rd. No alias process was procured or issued for said absent witnesses after the return of the process above mentioned, nor after the postponement of the trial as above stated. This is too clearly a lack of diligence to need further discussion.

The other bill of exception is to the refusal of appellant’s motion for a new trial and presents no error.

The State’s testimony positively affirmed a sale of liquor to the party named in the indictment at or about the time therein set forth. The question of the credibility of the witness and of the sufficiency of his testimony was for the jury and they have decided the issue against appellant.

No error appearing, and affirmance is ordered.

Affirmed.

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LATTIMORE, Judge.

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

The record contains two bills of exception. One presents the refusal of a continuance. There was absolutely no diligence shown in regard to the two absent witnesses: One of them was alleged to reside in Harris County and the other in Brazoria County. The indictment was presented in February, 1922. The date of the arrest of appellant is not shown. His first subpoena for said witnesses was issued on the 9th of September, 1922. The supbeona for the Harris County witness was returned September 18th, not executed, and the subpeona for the Brazoria county witness was returned on the 23rd of September, not executed. The record shows that this case was called for trial on September 30th and postponed until October 3rd. No alias process was procured or issued for said absent witnesses after the return of the process above mentioned, nor after the postponement of the trial as above stated. This is too clearly a lack of diligence to need further discussion.

The other bill of exception is to the refusal of appellant’s motion for a new trial and presents no error.

The State’s testimony positively affirmed a sale of liquor to the party named in the indictment at or about the time therein set forth. The question of the credibility of the witness and of the sufficiency of his testimony was for the jury and they have decided the issue against appellant.

No error appearing, and affirmance is ordered.

Affirmed.

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Bluebook (online)

249 S.W. 223, 94 Tex. Crim. 52, 1923 Tex. Crim. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-state-texcrimapp-1923.