
    BRYSON v. STATE.
    (No. 4107.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    1. Criminal Law &wkey;> 1144(19) — Appeal Bond —Presumption—Time oe Filing.
    Where the appellant’s motion for a new trial was overruled on the day the court adjourned, and on that day he entered into an appeal bond, the Court of Criminal Appeals, in the absence of proof thereof, could not, on motion to dismiss, presume that the appeal bond was filed while the court was in session, but would presume that the law was complied with by filing it after the adjournment of the court for the term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2774-2781, 2901, 3037; Dee. Dig. &wkey;1144(19).]
    2. Criminal Law t&wkey; 1076(1) — Appeal—Bond —Time.
    The right to give an appeal bond arises at once upon the adjournment of court for the term.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2716; Dec. Dig. &wkey;1076(l).]
    3. Witnesses <&wkey;390 —Credibility —Evidence — Fact in Issue.
    In a prosecution for violating the local option law, where there was a direct conflict as to whether the state’s witness or the defendant was the person selling whisky at the time, and where the state called a deputy sheriff who testified that upon a search he found two empty whisky cases at defendant’s house, and denied having stated to a third party that he found only one whisky case at defendant’s house, and where defendant had testified that there was only one case found at his house, which had been brought there by his brother, the refusal to permit defendant to prove by such third person that the deputy had told him that he found only one case at defendant’s house was error, as it was admissible on the weight to be given the deputy’s testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1247; Dec. Dig. &wkey;390.]
    4. Criminal Law &wkey;940 — New Trial — Newly Discovered Evidence — Materiality.
    In such prosecution, whore it appeared that a witness for the state had told the district attorney and defendant’s counsel that he knew nothing about defendant’s sale of whisky, and was excused, evidence that after conviction a certain party told defendant’s counsel that the former witness had gotten a shipment of whisky on the day of the alleged sale, and that the state’s witness admitted going from the witness’ to appellant’s house, and that the witness would testify that the state’s witness got whisky in his shipment and took it away on the night when the state’s witness went to defendant’s house and bought from defendant, was material on the issue as to which one of the two made the sale.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. &wkey;> 940.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Zeb Bryson was convicted of violating the local option law, and he appeals.
    Reversed, and cause remanded.
    C. H. Crum and T. C. Hutchings, both of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Cen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and sentenced to one year’s confinement in the state penitentiary.

The record discloses that appellant’s motion for a new trial was overruled on the 19th day of February. He was sentenced on that day, and court adjourned on that day. It further appears that on the 19th day of February (the day court adjourned) appellant entered into an appeal bond. The state asks us to presume that, as the appeal bond was filed on the same day the court adjourned for the term, the appeal bond was filed while the court was in session, and dismiss the appeal. We do not think we are authorized to indulge such presumption. Of course, if in fact the appeal bond was given before the adjournment of court for the term, the motion should be sustained; for the law requires a recognizance to be entered into in open court while the court is in session. But the right to give an appeal bond arises at once upon the adjournment of court for the term, and, in the absence of proof that the court was in session, we must presume the law was complied with in filing an appeal bond.

In this case Nevils Milam swears positive-, ly that he purchased three pints of whisky from appellant and paid him $2.25 for it. No other witness saw him buy it, but Paul Hamilton swears that» he went with Milam to appellant’s house, and he saw appellant and Milam go in the house, and after Milam came out he saw him with some whisky.

On the other hand, appellant swears that Milam and Hamilton came to his house, and that Milam brought some whisky with him when he came; that he tried to sell him some whisky, but he had no money, and they went to the home of Norman Goodwin, and Milam sold Goodwin a pint of whisky on credit, and then sold him a pint on credit. Norman Goodwin testifies that he purchased a pint of whisky from the state’s witness, and saw state’s witness sell to appellant. Thus it is seen there is a direct conflict in the testimony, state’s witness claiming to have purchased whisky from appellant, and appellant and Goodwin testifying that state’s witness, and not appellant, was the person selling whisky on that occasion.

To strengthen the state’s case the state called Deputy Sheriff Ben Reid, who testified that he found two empty whisky cases at appellant’s house, one looking like a gallon had been shipped in it, the other one holding 12 quarts or 24 pints. He denied having stated to Clay Russell that at the time he made the search that he found only one whisky case at appellant’s house. The appellant desired to prove by Clay Russell that Mr. Reid had so stated to him. This the court refused to permit him to do. In this the court erred. Appellant had testified that there was only one case found at his house, and said that this had been brought there by his brother, who had ordered some whisky some time before. It is thus seen there was a direct conflict in the testimony, Mr. Reid testifying that he found two empty cases; one in which whisky of the character the state’s witness had testified he had purchased would likely be shipped. Appellant testified there was only one empty case, the gallon case, and explained it being found there. He ought to have been permitted to prove, if he could, that Mr. Reid stated to Clay Russell a day or two after the search “that he saw only one box or carton which he believed to have contained whisky in the defendant’s house.” This was admissible on the weight to be given Mr. Reid’s testimony when he testified on this trial he found two.

Attached to the motion for a new trial’ is an affidavit claiming newly discovered testimony. J. J. Melton was summoned as a witness by the state. He told both appellant’s counsel and the district attorney he knew nothing about appellant, Zeb Bryson, selling any whisky. He was excused and went home. After conviction Bill Blevins told appellant’s counsel that J. J. Melton had gotten a shipment of whisky on the day of the alleged sale; that state’s witness Nevils Milam was interested in the shipment, and had gotten five bottles out of the shipment at the time he left Melton’s house. Now, Milam had admitted on the trial going from Melton’s to appellant’s house, when he said he bought the whisky from appellant, but when appellant and Goodwin both say they bought whisky from him. Melton swears he would testify that Milam did get four bottles of whisky in his shipment and carry it off with him the night Milam says he went to appellant’s house and bought from appellant, and the night appellant and Goodwin say they bought whisky from Milam. Under the facts in this case we think this testimony very material on the issue of which one of the two made a sale of whisky that night.

The judgment is reversed, and the cause remanded. 
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