Figueroa v. State , 71 Tex. Crim. 371 ( 1913 )

Appellant was prosecuted and convicted under article 612, Penal Code, for selling malt liquor, beer, without a license as such dealer.

The complaint and information sufficiently charge the offense. No motion was made to quash them. There are unnecessary allegations therein, but such should be regarded, and are surplusage. Thompson v. State, 152 S.W. Rep., 893; Goodwin v. State, 70 Tex.Crim. Rep., and cases cited.

There was a motion to arrest the judgment, but the grounds thereof were for defects of form. Under the statutes such motions are granted only for substantial defects. (P.C., arts. 849, 850, 476, 480.) One ground is that in the information the word "capable" in this portion of a sentence, "capable of producing intoxication," was misspelled, "capapble." This word was correctly spelled in said sentence in the complaint, and by express averment the information alleges it is preferred "in connection with the affidavit (complaint)." In no event should the judgment have been arrested on said ground. (Bailey v. State, 63 Tex.Crim. Rep.; Qualls v. State, 158 S.W. Rep., 538.)

The verdict, "We, the jury, find the defendant guilty as charged, and assess his fine at $300 and thirty days in jail," is clearly sufficient. It is general as required by the statute (C.C.P., art. 770). There is but one count in the complaint and information. Even if there had been two or more, the general verdict could, and should, be applied to the good one sustained by the evidence. (Wh. Ann. C.C.P., sec. 902, and cases cited.) That the complaint and information alleged appellant sold "malt liquor or beer," is not defective because and was not used instead of or. "Malt liquor" and "beer," under the statute, are, in effect synonymous. (Johnson v. State, 66 S.W. Rep., 552; O'Neal v. State, 51 Tex.Crim. Rep.; Milling v. State,67 Tex. Crim. 551, 150 S.W. Rep., 434; C.C.P., art. 473.)

Appellant complains, by bill, in effect, that the court would not let him go into the details of a thorough whipping by appellant of one of the State's witnesses, to show said witness' malice, ill-will, etc., against him. While it is always permissible to show such state of feeling of any witness (Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611; Earles v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 1181); yet the details and particulars can not be shown. The court, in allowing the bill, stated he permitted the defendant to prove there had been a difficulty between them, but refused to let the details be shown.

Certain short remarks of the county attorney in argument were objected to. But the bills do not show the state of facts under which they were made. Nor were any charges asked instructing the jury to disregard them. Even in felony, much less in misdemeanor, cases, this would not present reversible error. (Clayton v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 119, and cases therein cited.)

The court did not err in refusing appellant's special charge defining "occupation" or "business," as given therein. Neither of these words are used in the statute under which this prosecution was had. Even if it had been necessary to define either or both, the charge asked was incorrect, and not in accordance with the statute and decisions. Fitch v. State, 58 Tex.Crim. Rep.; Clark v. State,61 Tex. Crim. 597; Creech v. State, 70 Tex.Crim. Rep., 158 S.W. Rep., 282, and cases cited.

This court knows judicially that beer is intoxicating. (Moreno v. State, 143 S.W. Rep., 156.) In addition, the pleadings alleged the beer, or malt liquor, appellant is shown to have sold and dealt in, was intoxicating, and the court, by the charge, required the jury to so believe before they could convict. The uncontradicted evidence shows several sales of beer to different persons about the time alleged; that at the time he made some of these sales he had bottled beer in a barrel with ice around them, and at other sales he had the bottled beer in a tub on ice. That he had this beer at his meat market when he made these sales. And that he had paid no tax as a retail malt liquor dealer, and had no license therefor. (Mansfield v. State, 17 Texas Crim. App., 468; Wade v. State, 22 Texas Crim. App., 629; and see also the cases cited last above, and many other decisions to the same effect.) Therefore, the court did not err in refusing appellant's special charges on these subjects, nor in the charges given, for taking the charges given together, they correctly presented all the questions proper to be charged.

It was not necessary for the State to prove any county levy of taxes under this law. (Art. 612, P.C.)

In stating the case to the jury the court, in the charge, gave in substance article 611, Penal Code. This was proper because the payment of the tax and getting a license as a retail liquor dealer expressly included the tax and license as a malt liquor dealer. Besides, in submitting the case for a finding, the court only submitted it under article 612, Penal Code. Reynolds v. State, 58 Tex.Crim. Rep.; Matthews v. State, this day decided and cases there cited.

There is no reversible error shown and the case will be affirmed.

Affirmed.