Robinson v. State , 66 Tex. Crim. 392 ( 1912 )

Appellant was indicted, prosecuted and convicted of the offense of pursuing the business or occupation of selling intoxicating liquors in a county where prohibition had been adopted.

1. Appellant moved to quash the indictment on the grounds that the Act making it an offense to pursue the business or occupation of selling intoxicating liquors in local option territory is unconstitutional, and it does not negative the exceptions. The indictment in this case is in conformity with the indictment approved by this court in Mizell v. State, 59 Tex. Crim. 226, 128 S.W. Rep., 125, and approved in a number of cases since. (Fitch v. State, 58 Tex.Crim. Rep., 127 S.W. Rep., 1040; Slack v. State, 61 Tex. Crim. 372, 136 S.W. Rep., 1073.) We do not, therefore, deem it necessary to again discuss the question, and the court did not err in overruling the motion to quash.

2. The only other question raised in the motion for a new trial is that appellant having been convicted of making a sale of intoxicating liquors to Hollis Hawkins and to Ben Collins in the County Court of Nacogdoches County, and punishment assessed against appellant for making sales to those two persons, that evidence of having made sales to these two men could not be adduced on the trial of this case in support of the allegation that he was pursuing the business and occupation of selling intoxicating liquors. The indictment in this case alleged that appellant "engaged in and pursued the occupation and business of selling intoxicating liquors in a manner not permitted by law, and in violation of said law," and alleges that sales were made by appellant to Tom Lorance, Ben Collins, Hollis Hawkins and J.T. Kane, and to each of them, and to other persons to the grand jurors unknown. Appellant filed a plea of former conviction, alleging that he had been convicted of violating the local option law in making sales to Hollis Hawkins and Ben Collins, and that said transactions were one and the same offense for which he was being prosecuted in this case.

On motion of the district attorney this plea was stricken out, he alleging that the plea on its face shows that the offense for which he is being prosecuted is another and different offense, showing that the offense of which he had been convicted was for making a single sale of intoxicating liquor, while in this case he was being prosecuted for pursuing the occupation and business of selling.

If appellant's contention, that two sales constituted a violation of the law, and on proof of two isolated sales one could be convicted of pursuing the occupation, was the law, there would be strength in his position. But as a general proposition, one can be guilty of pursuing an occupation without ever having made a sale. (Williams v. State, 23 Texas Crim. App., 499; Stanford v. State, 16 Texas Crim. App., 331.) However, in prosecutions under this statute, the Legislature has not only placed the burden on the State of proving that one engaged in the business or occupation, but has also provided that in addition to making that proof the State must prove that at least two sales were made. Evidence that a person had made two sales, with no other facts or circumstances in evidence, would not make one guilty of pursuing the business or occupation. It is an entirely different and distinct offense from making an isolated sale of intoxicating liquor, and while evidence that sales had been made would be admissible as tending to prove that one was engaged in the occupation or business, yet the elements of the two offenses are not the same, and the facts that would prove that one had made a sale to a named individual, would not establish that he was engaged in the occupation or business. They are two separate and distinct offenses, and while it is true that the State can carve but once andconvict a person of a given transaction, yet where the transaction for which he has been convicted would not in and of itself constitute a different offense also, the doctrine of carving does not apply. In this case, if the State had only proven a sale to Hollis Hawkins and Ben Collins and nothing more, the evidence would not support the verdict. But the State went further and proved sales to other and different people, and proved that about this time appellant received by express eighty-four quarts of whisky, and this evidence taken as a whole sustains the finding that appellant was engaged in the occupation or business.

There was no error in admitting evidence that sales to Hawkins and Collins tended to show that he was engaged in the business and occupation. In 12 Cyc., vol. ___, page 286, the rule is thus laid down: "Many transactions have by statutes regulating the sale of intoxicants been divided into two or more crimes so distinct in their characters that jeopardy for one is not a bar to a prosecution for the other. A conviction of violating the Sunday law is no bar to a subsequent indictment for maintaining a disorderly house, for the sale of liquors without a license, or for the illegal sale and keeping of liquors, as the evidence differs in each case, and the latter offenses are distinct crimes on whatever day they may be committed," citing many authorities.

In the case of Smith v. State, 105 Ga. 724, it was held: "One of the assignments of error in the motion for a new trial was that the court erred in failing to charge the jury upon the plea of former acquittal. We do not think there is any merit in this exception. The offenses of retailing liquor without license and keeping open a tippling-house on the Sabbath day are separate and distinct. Neither of them is a necessary element in and an essential part of the other. Neither of them may be committed without perpetrating the other. A person prosecuted for either is in no jeopardy of being convicted of the other, or of any offense which is an essential part of the other. The case of Blair v. State, 81 Ga. 629, is exactly in point. It was there held that `A former conviction of selling liquor to a minor without the written consent of his parent or guardian, even if properly pleaded, would not be good in bar of a prosecution for selling liquor without license, though the act of selling were the same in both cases.' See Bell v. State, 103 Ga. 397. It may be noted that in Minor v. State, 63 Ga. 318, it appears that Minor was tried for keeping open a tippling-house on the Sabbath day, and also for retailing liquor without license, and was convicted in both cases." The following notations and citations are cited: "A conviction of maintaining a common nuisance is no bar to an indictment for illegally keeping liquors for sale (State v. Zimmerman, 78 Iowa 614, 43 N.W. 458; State v. Wold, 96 Me. 401,52 A. 909; Com. v. McCabe, 163 Mass. 400, 40 N.E. 182; Com. v. McCabe, 163 Mass. 98, 39 N.E. 777; State v. Wheeler, 62 Vt. 439, 20 A. 601; State v. Lincoln, 50 Vt. 644), or for being a common seller of intoxicating liquors (State v. Inness, 53 Me. 536; Com. v. Cutler, 9 Allen (Mass.), 486; Com. v. O'Donnell, 8 Allen (Mass.), 548; Com. v. Bubser, 14 Gray (Mass.), 459), and a conviction of the latter offense is no bar to a conviction for a single sale (State v. Maher, 35 Me. 225; State v. Coombs, 32 Me. 529). Keeping liquors for sale and keeping a place in which they may be sold (State v. Moriarty, 50 Conn. 415; State v. Brown, 75 Iowa 768,39 N.W. 829; State v. Graham, 73 Iowa 553, 35 N.W. 628; State v. Harris, 64 Iowa 553, 35 N.W. 628; Com. v. Breesford,161 Mass. 61, 36 N.E. 677; Com. v. Sullivan, 150 Mass. 315,23 N.E. 47; Com. v. Hanley, 140 Mass. 457, 5 N.E. 468; Com. v. Sheehan, 105 Mass. 192; Com. v. McCauley, 105 Mass. 69; Com. v. Hogan, 97 Mass. 122), selling to a minor and selling otherwise illegally (Ruble v. State, 51 Ark. 170, 10 S.W. 262; State v. Gapen, 17 Ind. App. 524, 45 N.E. 678, 47 N.E. 25; Com. v. Vaughn, 101 Ky. 603, 42 S.W. 117, 19 Ky. L. Rep., 777, 45 L.R.A., 858; Mitchell v. State, 12 Neb., 538, 11 N.W. 848; Miller v. State, 3 Ohio St. 475); selling on Sunday and selling without a license (Com. v. Montross, 8 Pa. Sup. Ct., 237), are different offenses. Section 14, Cent. Dig., tit. `Criminal Law,' sec. 397."

In the case of Nichols v. State, 37 Tex.Crim. Rep., it was held that a former conviction for rudely displaying a pistol is no bar to prosecution for unlawfully carrying the same pistol. Numerous other cases might be cited, but we do not deem it necessary.

The judgment is affirmed.

Affirmed.