Holloway v. State , 53 Tex. Crim. 246 ( 1908 )

The judgment of conviction in this case was affirmed at the late Dallas term. The only question considered in the original opinion of the court, was the sufficiency of the indictment. The case was disposed of in view of the fact that the statement of facts was filed at such a time as that it could not under the rule adopted by this court, and obtaining generally, be considered. The record shows that the County Court of Jones County at which appellant was convicted adjourned on the 22nd day of June, 1907. The statement of facts in the case was filed on July 9, of the same year. There is no order of the county court authorizing or permitting the statement of facts to be filed after the adjournment of the court. Appellant in his motion for rehearing raises two questions. First, that the charge of the court complained of and which will be hereafter noted, was erroneous and of such character as to require a reversal of the case. Second, that the judgment of conviction was unsupported by, and not in accordance with the testimony.

1. It is elementary that in the absence of a statement of facts, that this court on appeal will, in aid of the judgment of the court below, indulge the presumption that all the material allegations in the indictment were proved. Lega v. State,36 Tex. Crim. 38; Gross v. State, 4 Texas Crim. App. 249; Booker v. State, 4 Texas Crim. App. 564; Davis v. State, 6 Texas Crim. App. 196.

2. A more serious question, however, is raised on the charge of the court. The court, among other things, gave the following instruction: "VIII. Evidence of transactions by defendant, B.F. Holloway, with parties other than Walter Brewington has been admitted in evidence before you for the purpose of showing the character or system of business conducted by the defendant and may be considered by you as circumstances in connection with other evidence in this case and if you should find from the evidence of other transactions such as are involved in this case with Walter Brewington that the defendant herein was engaged in a system of business for the purpose of evading the local option law, then in such event you should convict the defendant." In connection with this charge and immediately preceding it, the court gave the following instruction: "VII. Therefore, bearing in mind the foregoing instructions you are charged that if you believe from the evidence beyond a reasonable doubt that B.F. Holloway did in Jones County, Texas, on or about the 11th day of August, 1906, sell to Walter Brewington intoxicating liquor after the qualified voters of said Jones County had determined at an election held in accordance with the laws of said State that the sale of intoxicating liquor should be prohibited in said Jones County, had passed an order to that effect which order had been duly published in accordance with law, or if you further believe from the evidence beyond a reasonable doubt that B.F. Holloway did in Jones County, Texas, on or about the 11th day of August, 1906, acting as the agent of and in connection with August A. Busch Company of Waco, Texas, if he did so act as agent as above defined, sell to Walter Brewington intoxicating liquor after the qualified voters of said Jones County had determined at an election held in accordance with the laws of said State that the sale of intoxicating liquor should be prohibited in said Jones County, and after the commissioners court had passed an order to that effect, which order had been duly published in accordance with law, you will find the defendant guilty and assess his punishment at a fine of any sum not less than $25 nor more than $100 and by imprisonment in the county jail for any term of not less than twenty days nor more than sixty days, and if you have such doubt you will acquit the defendant and so say by your verdict."

Following paragraph 8 of the court's charge quoted above the court charged the jury as follows: "IX. You are further charged that if you believe from the evidence that the defendant, B.F. Holloway, on or about the date alleged in the indictment received and ordered from Walter Brewington at Stamford, Texas, for one cask of beer said order if any addressed to August A. Busch Company at Waco, Texas, and in compliance with said order if any, said Busch Company shipped by freight, freight charges prepaid to said Walter Brewington at Stamford, Texas, and you further believe that afterwards the said B.F. Holloway collected from the said Walter Brewington the sum of $11.25 in payment for said beer and you further find and believe from the evidence that in taking said order and collecting said sum of money said B.F. Holloway was acting for and as the agent of said Walter Brewington you will find the defendant not guilty and so say by your verdict."

It is claimed that paragraph eight of the court's charge quoted above was erroneous in that it authorized a conviction if the jury found from the evidence that appellant was engaged in a system of business for the purpose of evading the local option law without regard to whether or not he made the sale of intoxicating liquors to the said Brewington within the prohibited territory. This contention of appellant is correct and the charge of the court in the terms given is not the law. Vanarnsdale v. State, 35 Tex.Crim. Rep.; 34 S.W. Rep. 931; Brookman v. State, 50 Tex.Crim. Rep.; 96 S.W. Rep. 928. But it does not of necessity follow that for such error the case, in the absence of a statement of facts, must be or should be reversed. Ordinarily in the absence of a statement of facts, this court will inquire no further than to ascertain whether or not the indictment was sufficient to charge the offense and sustain the charge of the court and the verdict of the jury, except as to matters so presented by bills of exception as to be determinable without a statement of facts, or where it appears that the conviction was not had by due course of law. It has been said, however, that this rule does not preclude this court from revising the charge of the court in a felony case where such charge is not warranted by the indictment, and, where under any state of evidence, it would be manifestly erroneous, and may have prejudiced the rights of the accused. Brown v. State, 16 Texas Crim. App. 197; Hemanus v. State, 7 Texas Crim. App. 372; Davis v. State, 6 Texas Crim. App. 196; Gerold v. State, 13 Texas Crim. App. 345; Kaskie v. State, 7 Texas Crim. App. 202; Davis v. State, 2 Texas Crim. App. 162. How far we may in any case hold that a charge is not warranted by the indictment may be a doubtful question. We think ordinarily, however, where the offense charged in the indictment is submitted to the jury, even though not with strict accuracy, that such charge cannot, in the absence of a statement of facts, be reviewed. If an offense, not included in the indictment, is submitted, or if a conviction is authorized in a charge, which, under the indictment in the case, would not be justified, we could in such case review such a charge of the court. In the case of Ortis v. State, 18 Texas Crim. App. 282, the following charge was given on the subject of accomplice: "An accomplice is one who, though not present at the commission of an offense, but who, before the act is done, advises, commands and encourages another to commit the offense, or who agrees with the principal offender in committing the offense, though he may not have given such aid." It is stated in the opinion in that case that while this is the definition of an accomplice as given in article 79 of the Penal Code, that as used in article 741 of the Code of Criminal Procedure, an accomplice is any person who has participated in the commission of the crime, whether as principal offender, or as accessory, or in any other manner which makes him a particeps criminis. In considering this charge in that case Judge Hurt says: "There being no statement of facts, we are not able to determine whether the following charge (above quoted) was calculated to injure the defendant, but it is most evidently incorrect. There must have been some evidence that a witness in the case was an accomplice." And so in this case, while it must be conceded that the charge complained of is erroneous, are we justified in holding, in view of the entire charge, that it is such error as that we can, in the absence of the statement of facts, say and know was injurious and hurtful? It may be that if the statement of facts could be considered that there was such an utter absence of proof of system, or admission of such facts of guilt as to make the charge complained of wholly immaterial. We are not inclined to break away from, or extend the rule frequently announced in this court and in the Supreme Court for more than a generation, that in the absence of a statement of facts, we will and should presume in aid of the judgment of the court below, the regularity of the proceedings, the sufficiency of the proof, and decline to reverse in any case, unless the charge of the court so departs from the indictment as to make such error conclusive evidence of injury.

Holding these views it results that the motion should be overruled.

Overruled.