Page v. State

251 S.W. 806, 94 Tex. Crim. 486, 1923 Tex. Crim. App. LEXIS 206

• Court: Court of Criminal Appeals of Texas
• Decided: May 2, 1923
• Docket: No. 7603.
• Status: Published

Opinions

MORROW, Presiding Judge.

Conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Shropshire, a witness for the State, testified that on the afternoon of the day upon which the appellant was arrested, he (Shropshire) visited the home of appellant, which seems to have been some distance from Port Worth, though in the same county. Shropshire’s mission was to induce appellant to bring the witness some whisky. This appellant refused. The witness then suggested that he would get “his man”.to come back that night if some whisky could be obtained. Appellant made no promise to furnish it. Later, however, on the same evening, Shropshire and the witness Conerite went to the home of the appellant reaching there about 9:30 o’clock at night. Appellant and his wife had retired for the night. On the premises was a young man named Bedford. Appellant was told that there was a man who wanted five gallons of whisky. The price was discussed and agreed upon, and appellant instructed Shropshire and Conerite to drive down a certain road, which he described and pointed out. According to instructions, the witnesses waited for the appellant at a point about a quarter of a mile from his place of abode. He appeared in an automobile in which there were two jugs of whisky. It was sampled by Conerite. The other man called Bedford was also present' with the appellant. Bedford had a shotgun. Conerite counted 'the money and then handed the agreed price of the whisky to Shropshire to count. Conerite then got possession of Bedford’s gun and put the parties under arrest. Conerite was a detective and Shropshire, according to the testimony, was acting with him in this transaction.

Conerite described his part in the transaction in accord with the testimony of Shropshire. The witness Rhodes, it seems, was also nearby, and together with the other officers, assisted in making the arrest or appeared soon after Conerite had done so. When appellant was arrested, he said: “Well, you have got me right this time boys.”

McCauley, a witness for the appellant, testified that he saw Shrop- " shire on one occasion, about 4:30 in the afternoon, come to the camp at which appellant lived; that appellant and his wife were present. Shropshire had two jugs in the car and requested appellant to bring them to town, but appellant declined to do so, stating that he would not risk it. Shropshire then told appellant that he would take the whisky and hide it, where appellant and his wife would know where to find it. They took the whisky and went in a certain direction, though the witness did not know what they did with it. He knew nothing further about the matter.

The wife of the appellant was not present at the trial. She had been duly subpoenaed but was absent on account of sickness. According to the averment in the motion to continue she would have testified that Shropshire came to the home of herself and husband with five gallons of whisky in his possession, which he said he had sold to Conerite and which he asked appellant to deliver at Fort Worth. Upon appellant’s declining to do so, Shropshire said that "he would bring a man out that night and to deliver it to him and receive the money therefor; “that Shropshire came out that night, bringing a man with him, to which he delivered the whisky and received pay therefor; ’ ’ that the only part or act of appellant, Page, in the matter was knowing that the same was to be done; that he had no part in the whisky and in no wise had anything to do with the transaction between the parties.

The trial took place on September 6th. The motion for new trial was overruled on September 11th. The motion is not supported by any affidavit of the absent witness. She resided in the county and was the wife of the appellant. No explanation of the absence of such affidavit is given.

We are of opinion that considering the evidence upon the trial and the entire record, the action of the court in overruling the motion for new trial, based upon the application for a continuance, was not without warrant. Primarily, it was the duty of the trial court to pass upon the probable truth and effect of the absent testimony. An abuse of the discretion vested in the trial court is not revealed.

The judgment is affirmed.

Affirmed.