King v. State

3 S.W.2d 802, 109 Tex. Crim. 173, 57 A.L.R. 407, 1928 Tex. Crim. App. LEXIS 170

Opinions

MORROW, Presiding Judge.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale, punishment fixed at confinement in the penitentiary for one year.

The state’s testimony, in substance, was this: Wolverton, a federal prohibition enforcement officer, possessing the names of persons in Corsicana thought to be engaged in violation of the laws prohibiting the traffic of intoxicating liquor, and knowing that whiskey was being sold at a certain grocery store, entered the place and sought to purchase whiskey from the appellant. A number of persons were present and drinking whiskey, but appellant declined to sell any to the witness, stating that as he was unknown to the appellant the witness would have to get someone with whom appellant was acquainted to make a purchase; that so many persons were coming in that one must be careful. The witness left the place, and after obtaining a small mirror, returned and entered into a conversation with two old gentlemen. One of these men was a frequenter of the place, and agreed to purchase a half-pint of whiskey for the witness. The old man was furnished with a dollar, and after a private conversation with appellant the two went to a place in the building behind a partition. The witness adjusted his mirror so that he could observe the movements of the appellant and the old man. The witness, by the reflection in the mirror, saw the old man hand the appellant a dollar and receive the bottle of whiskey, which the old man later delivered to the witness.

There was an issue touching the identity of the appellant and much cross-examination of the state’s witness.

To that part of the testimony of the witness Wolverton which disclosed his observation of the transaction as reflected in the mirror objection was made, and the ruling preserved by a bill of exceptions in which the grounds of objection are thus stated:

“Because such evidence was secondary, and not the best evidence, but the mere conclusions of an inexpert witness, the state’s witness, Wolverton, not having qualified as an expert on mirrors, reflections and angles. And, having failed to produce the magic little mirror so that the jury could have the actual alleged facts presented and illustrated, such evidence amounted to opinions and pure deductions of the witness, and was highly prejudicial to the rights of the defendant.”

The bill might be disposed of by the statement that the quotation is but grounds of objection, as there is contained in the bill no recital touching the knowledge of the witness as an expert on mirrors, or the reflections and angles thereof. See Davis v. State, 96 Tex. Crim. Rep. 447; Belcher v. State, 96 Tex. Crim. Rep. 561; Welk v. State, 96 Tex. Crim. Rep. 653; Vernon’s Ann. Tex. C. C. P., 1925, Vol. 2, Art. 667, Note 23, p. 368. The evidence detailing the reflection of a mirror would seem admissible upon the principle which sanctions the introduction of photographs and moving pictures. See Wigmore on Evidence (2nd Ed.), Vol. 2, p. 107, Sec. 798; also Zucarro v. State, 82 Tex. Crim. Rep. 8, in which there are quoted the remarks of' Associate Justice Holmes in a decision of the Supreme Court of the United States, referring to an encroachment of the copyright of Ben-Hur by a moving picture. The court said:

“Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word. It would be impossible to deny the title of drama to pantomime as played by masters' of the art. * * * But if a pantomime of Ben-Hur, it would be none the less so that it was exhibited to the audience by reflection from a glass, and not by direct vision to the figures — as sometimes has been done in order to produce ghostly or inexplicable effects. The essence of the matter in the case last supposed is not the mechanism employed, but that we see the event or story lived. The moving pictures are only less vivid than reflections from a mirror. With the former as with the latter, our visual impress —what we see — is caused by the real pantomime of real men through the medium of natural forces, although the machinery is different and more complex.”

We will add that aside from the testimony of which complaint is made, the evidence is quite sufficient to support the verdict.

The judgment is affirmed.

Affirmed.