
    RAILSBACK v. STATE.
    (No. 7089.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    Criminal law &wkey;>656(2) — Question, by court to witness held not comment on weight of evidence.
    In a prosecution for the unlawful sale of intoxicating liquor, where witness who testified to having purchased liquor from the defendant repeatedly refused to answer question of defendant’s counsel as to whether he had not told the counsel in the presence of another person that he received the money which he had paid for the liquor from the officer who made the arrest,, question by the court as to whether defendant’s counsel had asked witness if he had received the money . from the officer, to which the witness answered in the negative, held not a comment on the weight of the evidence.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Lee Railsback was convicted for the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Átty. Gen., for the State.
   HAWKINS, J.

Conviction is for the unlawful sale of intoxicating liquor, with punishment of three years’ confinement in the penitentiary assessed.

:; L. E... Holt,, a negro, the alleged purchaser, .was: an employs of J. K. Brady, who. was running a lumber yard in the- city of Stamford. Holt testified that on the day of the alleged sale appellant approached him in front of the lumber yard and asked if he wanted to buy some good whisky; that witness at the time told him he had only $3 in his pocket; that appellant told him he would let him have a half a gallon for $10; that he told appellant he was going to get some money, .and that if he would come back about 1 o’clock he would take the half gallon;, that he got from Mr. Brady $15, and at the appointed time saw appellant approaching; ■that he (witness) went into the basement, where appellant followed him, took- out of a handbag a half-gallon jug of whisky, and delivered it' to witness, for which witness gave him two $5 bills; that as witness was taking a drink two officers, Sa'nders and Ladd, arrested appellant, took the money from him and the whisky from witness; that appellant said to witness, “Old boy, there is a day coming for you; I will get you when I get turned loose." Sanders, the city marshal of Stamford, testified that his presence in the basement of the lumber yard was caused by a telephone message from Mr. Brady; that, after receiving this telephone call, he got Mr. Ladd, who was constable, and the two concealed themselves in the basement .of the lumber yard, and saw the transaction testified to by Holt. Appellant testified'.that he did not sell Holt any whisky, but at Holt’s request went into the basement for the purpose of giving him a drink; that just as Holt was taking the drink the officers drew a pistol on appellant, arrested him, and took the. whisky. He denied that' the officers took the $10 from him, but claims they made complaint at Holt.about him bungling about the $10, and asserted they found the money on the floor where Holt' had thrown it. He denied having received any money from Holt at all. The testimony of Sanders and Ladd iS‘ directly to the contrary. They both testified' that they saw Holt receive the whisky, and saw him deliver to appellant the two $5 bills; that at the time Sanders commanded appellant..to put up his hands he. (appellant) dropped one of the bills, which was picked up from the floor, and the othpr was taken out of. his hand, by the officer.

There are only two bills of exception in the .record. They relate to the same matter. While Holt was testifying he was asked by appellant’s ' counsel the following question:

, “I will ask you to state to the jury if it is not a fáct that you' told me in the presence of another person this morning in the courthouse here, that.you got the two $5 bills that you claim to have paid fór the whisky from Mr, Sanders. Answer ‘Yes’ or ‘No.’ ”

The bill recites that after Holt repeatedly refused, to. answer .the question. appellant’s attorney said to the court, “We insist on an answer to that question;” whereupon, the court stated in the presence of the jury, “I think he has answered the question the best he understands it.” Appellant’s, attorney then remarked, “We think we are entitled to the answer ‘Yes’ or ‘No’ to that question;” whereupon the court stated before the jury, “All right; if you can get him to answer it, go ahead.” It does not appear from the bill that the court interfered with counsel in his effort to secure an answer, but permitted him to go on with the examination. The further recital in the bill that the remark of the court was a comment upon the weight of the testimony, and calculated to mislead and prejudice the jury, is qualified by the statement that the only objection made was that “we object to the remark of the court,” whereupon the court' instructed the jury- not to consider anything the court might have said, and afterwards required the witness to answer the question. The other bill recites thaf, after Holt had repeatedly refused to answer the question propounded to him, the court took charge of the witness, and said:

“I think we can get it. Did you talk with this man (referring to the attorney) out here in an office to-day? While you were in there talking did he ask you if you got the two. $5 bills from Mr. Sanders?”

And the witness answered:

“He asked me did I get the money from Mr. Sanders and didn’t we frame up on this man.
“Q. What did you answer him about it? A. I told him ‘No, sir.’ ”

Attorney for appellant then asked:

“You mean you told him no to the frame up or to the $5 hills?”

Whereupon the court remarked in the presence of the jury:

“I think he has answered it all right;, go ahead with something else.”

The bill states that the proceedings and remarks of the court were objected to because the court failed to permit an answer to the question propounded by appellant’s attorney, and because the remark of the court, “I think he has answered it,” was a comment upon the weight of the testimony, and was calculated to prejudice the jury against appellant. The court qualified the bill by stating:

“The court did not ask the question mentioned in this bill until after defendant’s counsel had asked practically the same question eight times without getting an answer from the witness.”

We do not believe the action of the court' is subject to criticism. After counsel for appellant had repeatedly undertaken to get from the witness an. answer to his question the court seems to have interposed in his behalf, and himself directed- pertinent questions to the witness seeking to elicit the information which counsel had failed to get. There might be some basis for appellant’s contention if when he sought to follow up the predicate the court had declined to permit him to do so on the ground that no proper predicate had been laid, but no such conduct on the part of the court occurred. We find from the statement of fact's that -appellant called as a witness the party who claimed to have been present at the alleged conversation between-Holt.and appellant’s attorney, and who testified without objection that Holt did tell said- attorney that he got the money in question from Sanders. In so far as the matter affected Holt’s credibility appellant was deprived of no right whatever. We do not think the statement of the court subject to the construction that it was a- comment upon the weight of the evidence.

Holt testified positively that he did not receive the $10 from Sanders, but that he received it from Mr. Brady, his employer. Sanders was also positive in> his statement that he did not furnish Holt with the money with which the whisky was purchased. The learned trial judge, at appellant’s request, instructed the jury that Holt and Sanders were accomplices, and that conviction could not be had unless their testimony was corroborated by other evidence. We are not called upon to discuss whether it was necessary for the court to give this charge. He did give it, and appellant' received the benefit of it. We are of opinion he is not in a position to complain at any action of the court incident to the trial.

Finding no error in the. record, the judgment of the trial court is affirmed. 
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