Fann v. State

CHRISTIAN, Judge. The offense is selling whisky in a dry area; the punishment, a fine of $100. It was alleged in the complaint and information that appellant sold whisky to W. R. Sterling. W. R. Sterling, who was an inspector for the Texas Liquor Control Board, testified that he bought a pint of whisky from appellant on the 19th day of July, 1939. It was also his version that L. W. Davis accompanied him to appellant’s place of business. Testifying in his own behalf, appellant denied that he sold Sterling any whisky on the occasion in question, but admitted that he sold Davis a pint of whisky, for which he received one dollar and twenty-five cents. Appellant’s wife gave testimony corroborating his version of the transaction. In his brief appellant insists that he had theretofore been placed in jeopardy and that hence the trial court committed reversible error in overruling his plea to the effect that he had been placed in jeopardy for the same offense for which he was convicted herein. It is observed that appellant’s plea of former jeopardy "was sworn to before appellant’s attorney. An attorney for the accused is not authorized to take affidavits to be used in the case in which he represents the accused. Botts v. State, 13 S. W. (2d) 846. We are therefore constrained to hold that the trial court’s action in overruling the plea was warranted. After carefully examining all questions presented for review, we are of opinion that reversible error is not presented. The judgment is affirmed. The foregoing opinion of the Commission of Appeals has *582 been examined by the Judges of the Court of Criminal Appeals and approved by the Court.