
    HENSLEY v. STATE.
    (No. 4587.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Criminal Law i&wkey;419, 420(12) — Evidence —Hearsay.
    Where defendant contended that he left the county where an offense was committed and went to F. county in company with G. prior to the date of the alleged commission of the offense, a letter from G. to his father, stating that defendant had stayed in F. county until a certain date and then started home, was hearsay, and properly excluded.
    2. Criminal Law &wkey;>1169(l) — Harmless' Error-Admission of Evidence.
    On a criminal trial, a witness who fixed the date on which defendant left the county where the offense was committed as after February 20th by reference to a conversation with M., who told him that he was going to town the next day as a juror, further testified that in such conversation M. told him that defendant had a fight on the previous day. The court told the jury to disregard the statement -regarding the fight, but the witness was cross-examined about the fight, and various facts about it brought out. The state was permitted to prove that M. was a juror on February 27th. Held that, the fact of the fight having been withdrawn by the court and replaced by the cross-examination, there was no error, or at least no harmful error, regarding this; nor was there any harmful error in admitting the evidence of the date of M.’s service as a juror.
    3. Criminal Law <&wkey;939(3, 4) — Motion for New Trial — Diligence.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 837, subd. 6, authorizing new trials for newly discovered evidence, and providing that the motion shall be governed by the same rules as those which regulate civil suits, where a witness fixed the date when defendant left the county where the offense was claimed to have been committed by reference to a fight between defendant and S., a motion for a new trial, supported by 'the affidavit of F. that the fight took place a month earlier than such witness testified, was properly denied, where defendant did not account for his alleged want of knowledge of F.’s presence at the fight, or account for his failure to call S. or his brother, who separated the fighters, or to seek a postponement to obtain their testimony and that of others on the question of the date of the fight.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    T. Hensley was convicted of selling intoxicating liquors in prohibited territory, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for the sale of intoxicating liquors in territory where its sale was prohibited, and his punishment was fixed at confinement in the penitentiary for one year.

The date of the offense, as laid in the indictment, was February 12, 1916, and there was positive evidence of the sale by appellant on that day. An alibi, based upon the idea that appellant, about January 20, 1916, left Grayson county, and went in company with Ambrus Golden to Ford county, and remained there until about February 26th, was urged. The state’s contention was that appellant remained in Grayson county, near a village called Preston, during the month of February, 1916, until about the 26th day of that month. There was a marked conflict .of evidence on this issue. The witness Golden testified that he and appellant went together from Grayson county to Ford county in the latter part of January, and that appellant remained there until after the 20th of February, and in connection with his testimony identified a letter, dated February 24th, written by him to his father; and appellant complains of the refusal of the court to allow the introduction in evidence of a part of this letter, in which Golden wrote his father that appellant had stayed in Ford county until February 23d and then started home. This communication from Ambrus Golden to his father is hearsay. There is no impeachment of Golden, or other fact or circumstance disclosed, which would bring the evidence offered within any of the exceptions to the rule excluding hearsay. Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 19120, 126; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1094; Tripp v. State, 72 Tex. Cr. R. 97, 160 S. W. 1191; Jones v. State, 74 Tex. Cr. R. 205, 167 S. W. 1110; Vernon’s C. C. P. p. 647.

A witness by the name of Dishner testified that appellant was in Grayson county during January, 1916, and up to the latter part of February of that year, and that during this time witness had often seen appellant at Preston and in that neighborhood, and he fixed the date at which appellant left Preston as after February 20th by the circumstance of a conversation with one Mitchell, who on that date told witness he was going to town next day as a juror in court. Dishner, in relating this conversation, testified that in the conversation Mitchell had told him that appellant and one Steel had had a fight on the day previous. The court, on objection, told the jury to disregard the statement that Dishner was told appellant had a fight. Proof was made that Mitchell was a juror in the district court on February 27th. Dishner was cross-examined about the fight, and various facts brought out, showing that appellant and Steel did have a fight in a certain store in the village of Preston, in Grayson county. These phases of the evidence are made the basis of complaint, on the theory that the reference to the fight was hearsay, and that admission of proof of Mitchell’s jury service was error. The matter amounts only to the fact that Dishner fixed the date on which he asserted that appellant was last in Grayson county by the conversation with Mitchell, and the record of the date of the service on the jury. The fact of the fight, developed on direct examination, was withdrawn by the court, but was replaced by the cross-examination by appellant, and these matters, as presented in the record, disclose no error, at least none that was harmful.

On hearing of motion for new trial, appellant presented the affidavit of a witness, who resides in the state of Oklahoma, in which he says he was present at the time Tobe Hensley and Otis Steel had a fight at Preston, Tex., in Eli Goodale’s store, and that it took place in January, 1916, and on this basis the contention that he should have been awarded a new trial under the statute relating to newly discovered evidence. No evidence was introduced in the trial to rebut the state’s suggestion that the fight with Steel took place in the latter part of February. It occurred in a store in a village, and the failure to produce the testimony of the persons in the store, his adversary in the fight, or any other witness, is not accounted for, except that he says that Burt Steel, the brother of Otis Steel, is in Missouri temporarily, and that he did not know that Fowler, the maker of the affidavit mentioned, knew of the facts. Burt Steel, as declared in the motion, separated his brother and appellant at the time of the fight, and no explanation of his absence at the time of the trial is made, though at the time the motion was heard he is alleged to have been out of the state.

The failure to account for appellant’s alleged want of knowledge of Eowler’s presence at the fight, and the failure to account for the absence of Burt Steel and Otis Steel, and to seek a postponement to obtain their testimony and that of others on the question of the date of the fight, is not explained in a manner that meets the requirements of the law. Article 837, Vernon’s C. C. P., subd. 6, and cases listed vol. 2, p. 779, note 4; Wilson v. State, 37 Tex. Cr. R. 156, 38 S. W. 1013; O’Hara v. State, 57 Tex. Cr. R. 577, 124 S. W. 95; Cooper v. State, 58 Tex. Cr. R. 598, 126 S. W. 862.

Finding no reversible error in the record, it is ordered that the judgment of the lower court be affirmed. 
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