Mayo v. State

7 S.W.2d 575, 110 Tex. Crim. 65, 1928 Tex. Crim. App. LEXIS 459

Opinions

CHRISTIAN, Judge.

The offense is the possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year and one day.

Using marked money, Ollie King purchased from appellant at her home a pint of whiskey. At the time of the transaction he was accompanied by another party who witnessed the delivery of the whiskey by appellant to King. The marked money was shortly thereafter recovered from the possession of appellant. These facts were established by the state.

Appellant denied that she made the sale and supported her testimony by that of witnesses who claimed to have been present during the time the sale was alleged to have been made. These witnesses testified, as did appellant, that appellant was absent from home at the time King testified he purchased the liquor from her.

The indictment was returned May 21st, 1927. When the case was called for trial on September 26th, 1927, appellant filed a second application for a continuance in which she stated that she had issued process for the witnesses named therein on the 14th day of September, 1927. Court convened on the 5th day of September, 1927. Thus appellant waited approximately four months after the return of the indictment before issuing any process whatever for the witnesses. It is shown in the application that the witnesses were not served. It is not shown when the process was returned. No reason is stated for appellant’s delay in issuing process. No diligence is shown. The application was properly overruled.

Three bills of exception complaining of the argument of the county attorney are brought forward. It is shown that the county attorney stated to the jury in argument that he expected to try the witness King and that if appellant’s counsel would wait he would see that said witness got a trial during the present term of the court. Appellant objected to the remarks on the ground that they were not supported by the record and were prejudicial to his rights. The court refused to instruct the jury not to consider such remarks. The bill of exception complaining of the matter is qualified by the court to the effect that the argument was invited by appellant’s counsel, in that he stated to the jury that King was as guilty as appellant and that it appeared strange that the state had failed to prosecute him but had undertaken to prosecute appellant. The bill as qualified further shows that the witness King had testified that the county attorney had told him that he would be tried. The bill fails to manifest reversible error.

The county attorney further stated in argument that if appellant had not sold the witness King the liquor in question it would not be necessary to try King. Practically the same objections as noted above were made to these remarks. As qualified the bill of exception shows that the argument was invited, and we fail to find reversible error.

Again the county attorney asked the jury in argument if they were going to turn appellant loose “so that she could sell more of that damnable stuff for our boys to pour down their throats ?” Appellant objected to the argument in that it was claimed that it was not supported by the record and was prejudicial. The court refused to instruct the jury to disregard it. The court qualifies appellant’s bill by stating that the witness King who purchased the whiskey was a young man. If improper, we are unable to agree with appellant that the argument was harmful. Appellant received a penalty of a year and a day. The verdict was amply supported by the evidence.

Finding no reversible error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.