LOPEZ v. STATE.
(No. 5148.)
(Court of Criminal Appeals of Texas.
Oct. 30, 1918.
On Motion for Rehearing, Jan. 22, 1919.)
1. Criminal Law <§c=>1091(3) — Bill of Exceptions — INDEFINITENESS.
Bill of exceptions to refusal to permit state’s witness to answer certain question on cross-examination held indefinite, not showing in what connection testimony came, or why defendant was seeking to introduce it.
2. Criminal Law <§=>1170½(5) — Local Option Law — Evidence.
In prosecution for violating local option law, refusal to permit state’s witness to answer question by defendant on cross-examination held not erroneous; witness, as shown by trial judge’s qualification, testifying contrary to what defendant expected to prove by him.
3. Intoxicating Liquors <§=>146(3) — Local Option Law — Sale.
If one desiring intoxicating liquor gave money to another, who gave it to defendant, and defendant brought liquor, and gave it to person who furnished money, it was sale by defendant within contemplation of local option law.
On Motion for Rehearing.
4. Criminal Law <§=>1090(12), 1092(5) — Appeal — Misconduct of Jury.
To review question of misconduct of jury in hearing evidence from one or more of the jurors not introduced during trial, set up as ground for new trial, it is necessary that such evidence as was introduced should he perpetuated either in statement of facts or a bill of exceptions, reciting facts, approved by judge and filed during term.
5. Criminal Law <§=>956(1) — Motion for New Trial — Affidavit as Evidence,
Affidavit attached to motion for new trial is but a pleading, which authorizes introduction of supporting evidence, not being evidence itself, unless introduced as such on trial of motion in one of the ways specified.
Appeal from District Court, Brooks County; V. W. Taylor, Judge.
Antonio Lopez was convicted of violating the local option law, and he appeals.
Affirmed.
J. W. Wilson, of Ealfurrias, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for.the State.
DAVIDSON, P. J.
Appellant was convicted of violating the local option law; his punishment being assessed at one year’s confinement in the penitentiary.
[1-3] There is but one bill of exceptions found in the record. It recites that while the state’s witness Pena was being cross-examined by appellant he propounded the following question: “Was the money that was taken in put in that box?” The purpose of the question was to show that all money taken in at the gambling house was put in a box. which, it had been theretofore shown, was for the purpose of placing money and other things, and the prosecution objected to said question upon the following ground: “We would like for that question to be confined to the question in issue.” This was sustained, and the question was excluded. The reply would have been: “Yes; all money that was taken in was put in that box, and the money I paid him was placed in that box.” Appellant excepted to the ruling of the court. The judge qualifies this bill, and, among other things, states:
“The witness had already testified on cross-examination by defendant’s counsel that there was a drawer or box there where they kept the decks, chips, cards, and money where he was gambling, and the witness was permitted to testify as to what was done with the money he gave for the booze, and he testified that the money he gave for the booze was delivered in each instance by him to Pancho Perez, and upon one or more occasions by Pancho to Antonio Lopez, the defendant, and, when not delivered to the defendant Pancho, that it was not placed in said box, but placed in Pancho’s pocket, and, when delivered to Antonio, placed in Antonio’s pocket; the witness testifying absolutely contrary to what defendant says he expected to prove by him.”
*168This is a quotation from the judge’s qualification.
The bill is too indefinite, and does not make it appear just what was the object and purpose of the introduction of the excluded testimony or its connection with the facts in regard to selling the whisky. The witness Pena was the main state’s witness. He testified to the sale by appellant to himself of more than one bottle of mescal. This was denied by appellant. We think the bill of exceptions is indefinite. It does not show in what connection the testimony came, or why he was seeking to introduce fit. Under the court’s qualification the testimony was admissible. The facts further show that there was a gambling game in progress; that appellant was present, and when the witness desired to buy intoxicating liquors the defendant went away and came back directly with the mescal, and the witness Pena paid him for it. This occurred five times during the time witness was at the game and was purchasing mescal from appellant. This is the testimony of Pena. There was an issue between the state’s witness and the appellant with reference to this matter. He denied having mescal; also that he sold or was interested in selling intoxicants to Pena. Pena got the mescal from some one, and became very drunk. His testimony with reference to the last two or three bottles he bought was somewhat erratic and confused because of his drunken condition. We are of opinion that the bill of exceptions shows no error. If Pena gave the money to Pancho, and Pan-cho gave it to appellant, and appellant brought the intoxicating liquors and gave it to the witness, it still would be a sale by appellant. This court does not feel justified in reversing the judgment.
The judgment is affirmed.
On Motion for Rehearing.
DAVIDSON, J.
[4,5] Appellant, by his motion for rehearing, urges misconduct on the part of the jury in hearing evidence from one or more of the jurors which was not introduced during the trial. The affidavit of the juror Major is attached to the motion for new trial in support of the allegation of such misconduct. The judgment recites that the court heard the evidence and overruled the motion for new trial. The record does not contain a verification of the facts of this ground of the motion, either by bill of exceptions or a statement of facts.
In order to have this question reviewed, it is necessary that such evidence as was introduced should be perpetuated either in the statement of facts or a bill of exceptions reciting the facts, approved by the judge and filed during the term. We take the record as it is made as being correct. The affidavit of the juror is not evidence unless it was introduced as such on the trial of the motion. Had the evidence been approved by the. judge in a statement of facts or bill of exceptions and properly filed,(it would have presented the question for revision. The affidavit attached to the motion is but a pleading which authorizes the introduction of supporting evidence. It is not evidence within itself, and in order to constitute it evidence it should have been introduced as such on trial of the motion and shown to have been so introduced in one of the ways specified. This has been the rule under the authorities and decisions of this court. Sharp v. State, 71 Tex. Cr. R. 633, 160 S. W. 369. A great many cases could be cited to the same effect, but we deem it unnecessary, but cite Reyes v. State, 196 S. W. 532, for a long list of such cases.
The judgment recites that evidence was heard and the motion overruled. What that evidence was is not shown in any way in the record that is before us; therefore we cannot review the question suggested by thé affidavit. The evidence may not have supported the affidavit or pleading. The court in the judgment found it insufficient for that purpose and overruled the motion.
The motion for rehearing is therefore overruled.