Asher v. State , 102 Tex. Crim. 162 ( 1925 )

There were three counts in the indictment. The first charged a joint sale of the whiskey to Savage and Hedgespeth; the second charged a sale to Hedgespeth alone; and the third charged a sale to Savage alone. The court eliminated the first and second counts, submitting only the third, charging the sale to have been made to Savage. In connection with this he instructed the jury in substance that if the evidence showed beyond a reasonable doubt that the sale was made to Savage, or to Hedgespeth and Savage jointly, that the averment in the indictment charging the sale to Savage would be satisfied. Our original opinion holding such instruction not to have been erroneous is attacked as being out of harmony with former decisions of this court. An investigation of this same question in Brown v. State (No. 7810, opinion on Second Motion for Rehearing this date) leads us to the conclusion that we were in error in our former opinion, and that the instruction complained of should not have been given. Many of the former decisions of this court are reviewed in Brown's case (supra), and it is unnecessary to do so again. The conclusion there reached was that the naming of the purchaser was descriptive of the offense, and an averment of a sale to one would not be supported by proof of a joint sale to two or more, and vice versa. To hold otherwise would necessitate overruling the cases cited in Brown v. State (supra) and again listed here for convenience. Dixon v. State, 21 Tex. Cr. App. 517, 1 S.W. 448; O'Shennessy v. State,49 Tex. Crim. 600, 96 S.W. 790; Price v. State, 83 Tex.Crim. R.,202 S.W. 948; Ellington v. State, 86 S.W. 330; Sessions v. State, 98 S.W. 243; Bruce v. State, 44 S.W. 852; Yakel v. State, 30 Tex. Cr. App. 391, 17 S.W. 943; Arnold v. State,47 Tex. Crim. 556; Tippet v. State, 53 Tex.Crim. R.; Westbrook v. State, 88 Tex.Crim. R., 225 S.W. 750.

However, we have reached the further conclusion that under the facts of this case while the charge complained of was erroneous, it does not demand a reversal, and in this respect is similar to the case of Price v. State (supra). The facts are that the money for the purchase of the whiskey was furnished by Fulwiller, and given by him to Savage. According to Savage, Hedgespeth refused to take any of the money. Savage testified that he purchased the whiskey, and that Hedgespeth was with him; that at this time he handed Hedgespeth two dollars which the latter handed to appellant, and that he (Savage) handed appellant two dollars also; that appellant handed the whiskey to witness (Savage), or handed it to Hedgespeth, who immediately handed it to witness (Savage) and that he put it in his pocket. The whiskey was found in possession of Savage. The money furnished by Fulwiller was marked. The purpose of Savage was to get evidence against appellant rather than to acquire the whiskey. Hedgespeth was also called as a witness by the State. Instead of supporting Savage he denied having any transaction either with appellant or Savage. He admitted his presence with Savage at the place of the alleged purchase but denied the purchase of any whiskey himself or seeing Savage buy any. According to the evidence, Savage alone received the money from Fulwiller, was the latter's agent and the chief actor in acquiring the whiskey. Under the testimony we think it unlikely that the erroneous charge would have led to the conviction of appellant for an offense not charged in the count of the indictment submitted. Believing the erroneous charge not calculated to have injured appellant it will be held harmless under the provisions of Article 666 Cow. C. P. (Formerly Article 743). We consider that the motion for rehearing should be overruled.

Judge Lattimore concurs in the disposition made of the motion, but dissents from the holding that the charge complained of was erroneous, for the reasons given in his dissenting opinion in Brown v. State (No. 7810), not yet reported.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.