Caspary v. State , 14 Tex. Ct. App. 567 ( 1883 )

Hurt, Judge.

Caspary and Anderson "were indicted jointly for selling cigars to one J. M. Williams on Sunday. Caspary, being convicted, appeals. It is urged that the evidence does not support the verdict of the jury, and that, therefore, the judgment should be reversed. We are of the opinion that this ground is well taken.

1. It is very doubtful whether there was a sale to Williams at all. 2. If a sale, there is no evidence tending to connect Caspary with the sale, or which tends to hold him responsible for the sale.

To the first proposition: Was there a sale? Williams, upon this subject, says: “On last May, on Sunday, I walked into Caspary’s drug store to buy a cigar. When I stepped into the store, I called for a cigar, and Mr. Anderson, the clerk, handed toe the cigar and I lit it and walked out. I don’t remember whether I paid for it then or not. I intended to buy it. I had a running account at Mr. Caspary’s store. I remember very distinctly that when I settled my account at Caspary’s, in May, I paid for cigars. When I called for the cigars Mr. Anderson handed it out to me and said nothing. I had a running account at Caspary’s at the time. It may have been charged to me. I remember that I paid for cigars when I settled my account there for May, Mr. Caspary has given me cigars since that time, and, maybe, before. When he gave me a cigar he asked me to have a cigar, or I would ask him to set them up.”

Williams may have entered the store with the intention to purchase the cigar—may have believed that he had bought the same—still, if Anderson did not sell it to him, his intention and belief would not constitute a sale. Was this cigar charged to him? The affirmative, of this question does not appear. It is true that his account of May contained items for cigars. Were these purchased on Sunday? Did the cigar in question comprise an item of that account? If so, we have no proof of it.

But, concede the sale, where in the whole record is there a fact, a remote fact, tending to connect Caspary with this transaction?

He was not present; there is no evidence that he or his clerk was in the habit of violating this law. Ho proof that he received the pay, or was cognizant of any wrong whatever on the part of his clerk, Anderson. We are of opinion that the verdict is not supported by the evidence, and that the judgment must be reversed and the cause remanded, which is accordingly done.

Reversed and remanded.

Opinion delivered October 10, 1883