Davis v. State , 93 Tex. Crim. 192 ( 1922 )

Appellant was convicted in the District Court of Kaufman County of the offense of selling intoxicating liquor, and her punishment fixed at one year in the penitentiary.

The evidence of the State aside from that of the witness to whom it was alleged the liquor in question was sold, showed that an officer upon examination of the premises occupied by appellant and her aged and infirm mother, found a five gallon can, a copper coil, a rubber hose, some kind of tin outfit and some mash, the latter being buried under a smoke house. There were also found in the kitchen several empty jars which witness said smelled of corn whisky. None of the property so found was exhibited in court. Appellant's bill of exceptions No. 1 complains of the reception of the testimony of said officer and sets out that appellant would have made a motion showing that the premises so entered and searched by said officer was the homestead of appellant and her mother, and that there was no right of entry under any search warrant or other legal authority. This contention of appellant appears to have been discussed and to some extent decided against her in the recent case of C.E. Gaines v. State, No. 6608, decided at this term. See Rippey v. State, 86 Texas Crim., 539. We do not think the question in this case.

Complaint is made that the court erroneously told the jury to convict appellant if she sold, bartered or exchanged the liquor in question, a sale only being charged in the indictment. The facts in evidence showed only a sale, if any offense is shown, and in our opinion the use of the other expressions in the charge of the trial court was of no possible harm to appellant.

By the terms of Chapter 61, General Laws of the First and Second Called Sessions of the Thirty-seventh Legislature, the benefit of suspended sentence is denied to any person convicted of a violation of the present liquor law, who at the time of such conviction is over twenty-five years of age. In the instant case appellant filed and presented her application for suspended sentence, omitting therefrom any allegation as to her age. In her testimony she admitted herself to be forty-one years old. The trial court refused to submit the issue of suspended sentence and appellant has an exception. The only authority cited supporting appellant's contention is that of Baker v. State, 70 Tex. Crim. 618, 158 S.W. Rep., 1002. The Baker case upholds the constitutionality of the suspended sentence law. We find nothing in our Constitution forbidding the Legislature the power to fix one punishment for a youthful offender and a different punishment for one of mature age, for the same character of offense. This is not class legislation, but is an exercise of a rightful discretion which discriminates between the turpitude of two similar acts, one of which is committed by an offender whose tender years and probable lack of judgment and knowledge makes it fitting that he should receive a lighter punishment. No person under twenty-five years of age is discriminated against by the terms of this statute. We do not think the fixing of the age limit of twenty-five years to be unreasonable or in excess of the power of the Legislature.

We do not think the facts in this case required a charge upon the necessity for corroborating the witness Freeman who testified that he purchased from appellant the liquor in question. Under the law as it now is the purchaser does not require corroboration. The fact that the witness was not so positive in his testimony upon cross-examination as that originally given by him, might be used to effect his credibility before the jury but would not call for a charge on accomplice testimony.

Proof of the finding of liquor or the implements or materials ordinarily used in the manufacture thereof, on the premises of one accused of selling such liquor, on or about the time of such alleged sale, would be admissible on the trial of such charge, and would have probative force in strengthening the probability of such sale. The testimony in the instant case that such implements and materials were found on the premises in question the next day after the alleged sale, would be admissible. That appellant disclaimed ownership of any of the articles found would not affect the admissibility of such evidence, the weight of which was for the jury.

From bill of exceptions No. 6 it appears that appellant made a motion at the close of the testimony asking that this prosecution be abated or that she be declared not guilty for the alleged reason that she had given testimony before the grand jury regarding the transaction involved in the prosecution. Her claim was based upon Sec. 40, Chapter 78, General Laws of the First and Second Called Sessions of the Thirty-sixth Legislature, which is as follows:

"That no person shall be excused from testifying against persons who have violated any provisions of this act for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punished for acts disclosed by such testimony."

Analysis of the above makes it plain that one who testifies against persons who have violated the provisions of the Dean liquor law, must be held exempt from punishment for acts disclosed by such testimony. In our opinion appellant wholly fails to bring herself with the comprehension of this exempting article. From her bill of exceptions above referred to we learn that after the alleged sale to Freeman, and after the officers had been to her premises and found the articles above mentioned, she was subpoenaed before the grand jury and there denied having made any sale to Freeman, — just as she did on this trial, — and also denied any connection with any of the articles found by the officers at her place. She testified before the grand jury that she had given two negro men permission to put something in her wood shed, and that if the officers found there the articles described by them, these two negro men must have put same there. She further averred in her said motion that after making these statements to the grand jury she was permitted to go, but was later brought back to the grand jury where she was identified by the witness Freeman, and that after he identified her she was taken to jail and locked up. Sec. 40, supra, is very different in its terms from Art. 593c of our Penal Code, which latter is a part of Chapter 7, Title 11, which whole chapter has been superseded by laws enacted under the present constitutional amendment forbidding sale of intoxicating liquor in this State. We do not think the decisions referred to by appellant which were had under the old Art. 593c give us any light upon appellant's contention here or are decisive thereof. Under the facts in the instant case we would be constrained to hold appellant not exempt from prosecution under Art. 593c, which is more liberal to the witness testifying regarding violations of the law, than is the present Sec. 40, supra. We fail to find where appellant is being punished in the instant case for any acts disclosed by her to the grand jury.

Appellant also complains of the fact that the evidence before the court does not sustain the verdict. We find ourselves unable to agree with this proposition. The boy Freeman testified positively that he bought the liquor from appellant and paid her for it. On cross-examination he testified to the presence of appellant and a negro man, and to some conversation between them, and the putting of the liquor upon a table and the putting of money by him on said table. We think the facts amply support the verdict.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON REHEARING January 10, 1923.