Fisher v. State , 81 Tex. Crim. 568 ( 1917 )

Appellant's conviction was for pursuing the business of selling intoxicating liquors in prohibited territory.

The allegations in the indictment sufficiently charge the offense, and that pursuant to said business the appellant made three sales of intoxicating liquors to one Alexander. There was evidence that appellant made the sales named in the indictment as well as other sales. So far as disclosed by the facts he had no other occupation. Each of the sales was of a particular brand of whisky put up in pint bottles and was delivered by appellant off of his person. That on other occasions he was found in possession of packages of the same character, and there was proof of numerous consignments of intoxicating liquors to him and receipt by him therefor to the express company.

The indictment is attacked on the ground that it was found at a special term of court under circumstances that are unauthorized by law in that a term of court was in session in another county in the same district at the time this special term was held. The facts are not materially different from those passed on in Elliott's case, 58 Tex.Crim. Rep., and upon the authority of that case the assignment is overruled.

The charge of the court is assailed upon various grounds, among them, that a special charge should have been given advising the jury that a conviction could not be had alone upon the proof of two isolated sales. The correctness of this principle is established by the statute and its construction in Mizell v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 125, and other cases following that case. It is not applicable to this case, however, for the reason that the conviction does not rest alone upon such proof but rests upon that and other facts and circumstances showing that appellant was engaged in the unlawful business named. Hightower v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 184.

The jury was told in appropriate language that appellant's conviction must be predicated upon proof beyond a reasonable doubt of the pursuit of the business of selling intoxicating liquors, and that in connection therewith there must be proof of two sales as alleged in the indictment.

A special charge on the subject of alibi was requested, but its refusal was not error for the reason that that issue was fairly submitted in the main charge.

The criticism of the definition of the offense contained in the main charge can not be sustained for the reason that it was practically in the same language that was approved by this court in the case of Fitch v. State, 58 Tex.Crim. Rep.; Clark v. State, 61 Tex.Crim. Rep.; Dickson v. State, 66 Tex. Crim. 270, 146 S.W. Rep., 914; Whitehead v. State, 66 Tex. Crim. 482, 147 S.W. Rep., 583; Hernandez v. State, 64 Tex. Crim. 73, 141 S.W. Rep., 268; Atkinson v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 114; Creech v. State, 70 Tex.Crim. Rep., 158 S.W. Rep., 277.

There is no evidence that the witness Alexander was connected with the sale of intoxicating liquor in any way save that he was a purchaser of it, and there was no error in refusing to instruct the jury on the law of accomplice testimony as applied to him. Walker v. State, 44 Tex.Crim. Rep., 72 S.W. Rep., 401; Marmer v. State, 47 Tex.Crim. Rep.; Fox v. State,53 Tex. Crim. 150; Dane v. State, 36 Tex.Crim. Rep.; Ray v. State, 60 Tex.Crim. Rep..

Bill of exceptions No. 7 complains of the refusal of a special charge advising the jury that the witness Walker was an accomplice and could not be the basis of conviction in the absence of corroboration. This bill of exceptions is not as specific as it should be in that it fails to show what testimony the witness Walker gave, or to point it out in the statement of facts; nor does it disclose sufficient facts to enable the court to pass upon its probable effect. These are things that have often been held essential in a bill of exceptions. Branch's Ann. P.C., p. 131, secs. 207 to 214; Harris v. State, 64 Tex. Crim. 594; Vernon's C.C.P., art. 743, p. 522, and cases. We have, nevertheless, examined the record and it is disclosed thereby that the witness Walker testified as follows: "I bought whisky from him in the back alley, behind J. Sides' confectionery; back on the west side. That is, back of J. Sides' store. Me and a white fellow was back in the alley there and Earl come up about that time, and the white fellow says to me, `Have you got any whisky?' The white fellow asked me about the whisky, and Earl came up and I asked Earl if he had anything, and he says, `Yes,' and the white fellows says — he just gave me $1.25 and I gave it to Earl. I got the whisky from Earl. Earl had the whisky with him right there. He handed the whisky to me, and I handed it to the white man. The white man was standing there in front, and he handed me the $1.25 and I gave it to Earl."

We do not think that the court was authorized to assume, as a matter of law, that Walker was an accomplice. The evidence leaves this question in doubt, and if the court had been requested to submit the matter to the jury to determine whether he was an accomplice or not, a different and perhaps a serious question would have been presented. Wilkerson v. State, 57 S.W. Rep., 956; Williams v. State, 33 Tex.Crim. Rep.; Brown v. State,58 Tex. Crim. 336; Vernon's C.C.P., art. 801, p. 736. We will add that Walker's testimony was not essential to a conviction. He was not one of the parties named in the indictment to whom specific sales were charged to have been made, and his testimony was but cumulative of other testimony in the record tending to show appellant's pursuit of the business of selling intoxicating liquors. Under article 743, and a construction thereof, Vernon's C.C.P., p. 502, we would not be authorized to reverse this case on account of this bill.

In bill of exceptions No. 9 complaint is made of an entry made in the express company's record of shipments of intoxicating liquor, and also of the testimony of the agent of the express company that the express company's books showed a delivery of whisky to the appellant on January 3, 1917. It appears that while the witness Kirk, the agent of the Wells-Fargo and Adams Express Companies, was on the stand he testified to the fact that upon a number of occasions he had delivered shipments of whisky to appellant, and in connection with his testimony affidavits made and signed by appellant to the effect that the liquor was not to be used or sold in violation of law were introduced. These cover various transactions during November and December, 1916, and January, 1917. One of these receipts bore date January 3, 1916. Kirk testified that the receipt of the last named date was incorrectly dated; that it should have been January 3, 1917. We understand from the testimony that the express company's book showing a delivery of four quarts of whisky to have been made to appellant on January 3, 1917, was before the jury and proved up by Kirk as the book kept by the express company, and that this particular entry was in the handwriting of another agent of the company with whose handwriting the witness was familiar; and in connection with this he testified that the books showed the delivery of four quarts of whisky to appellant on the date mentioned. The admissibility of the express book was passed upon affirmatively by this court in Stephens v. State, 63 Tex. Crim. 382, 139 S.W. Rep., 1141, and in Atkinson v. State,67 Tex. Crim. 364, 149 S.W. Rep., 114. The book showing the entry being admissible and in evidence, there could be no reversible error in permitting the witness to state that the books showed this entry. His statement would be but cumulative of the fact disclosed by the book, of which fact the jury was informed by the book itself. This shipment was but one of a number of others received by appellant according to the undisputed evidence about the same time.

We have carefully reviewed the entire record and find no reversible error disclosed thereby, and, therefore, order the judgment of the lower court affirmed.

Affirmed.

ON REHEARING. June 29, 1917.