McReynolds v. State , 26 Tex. Ct. App. 372 ( 1888 )

White, Presiding Judge.

This appeal is from a conviction for pursuing the occupation of selling liquor in quantities less than a quart, without first obtaining a license to pursue such occupation. Among other matters, the court instructed the jury as follows, viz.: “You are charged that different sales at different times near each other, to different persons, would constitute the occupation of selling, but one sale would not.” This portion of the charge was excepted to, as shown by one of defendant’s bills of exception. It is manifestly a charge upon the weight of evidence, and is, therefore, erroneous. Nor did it state a proposition in itself correct in law, for “a person may make occasional sales of liquor without pursuing or following, or intending to pursue or follow, the occupation of selling liquor.” (Stanford v. The State, 16 Texas Ct. App., 331; Merritt v. The State, 19 Texas Ct. App., 435, and authorities cited.)

Opinion delivered November 3, 1888.

“The offense denounced by article 110, Penal Code, consists not in the mere sale of spirituous liquors without license, but in pursuing the occupation of selling spirituous liquors without first having paid the occupation tax levied on such avocation.” (Williams v. The State, 23 Texas Ct. App., 499.) It was a matter for the jury to determine whether from the number of sales or other circumstances proven the party was pursuing the occupation, and not for the court to tell them how many sales would constitute the offense.

For error in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.