Roberts v. State , 52 Tex. Crim. 355 ( 1908 )

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $100 and sixty days confinement in the county jail.

Bills of exception Nos. 12, 13 and 14 show the following: The State's witness, G.M. Houston, testified that the defendant, W.B. Roberts, while under arrest in another case, was brought up to witness' office by the deputy sheriff. "The private prosecutor, M.D. Carlock, was present when Roberts was in my office. Mr. Roberts was sworn to testify about violations of law. After he was sworn, Mr. Carlock told him that any statement that he made could be used against him and not for him. Mr. Carlock then asked Mr. Roberts about some whisky which he then had in the depot at the town of Winnsboro, and he asked defendant what he was going to do with the whisky, and Roberts said that he was going to send it to Joe Biddy at Elberta. Mr. Carlock then told him that he must not send the whisky to Joe Biddy at Elberta; if he did so he would be prosecuted. The defendant then stated that he guessed he would send the whisky back to the man he had got it from. Mr. Carlock then told the defendant that it would be a violation of the law for him to either sell this whisky or ship it to Joe Biddy for the purpose of having Joe Biddy sell it. The defendant did not say anything in answer to this statement. Mr. Carlock told him that under the law he, Roberts himself, would be guilty and could be prosecuted for every sale made by Joe Biddy. He also told the defendant that he would be prosecuted for every sale that Joe Biddy made, and that he, defendant, was just as guilty as Joe Biddy. Defendant did not say anything." The witness was permitted to tell all of the above conversation in the presence and hearing of the jury. This evidence was clearly inadmissible. If the defendant, after being duly warned, made a statement, criminative, it would be admissible, but the opinion of the prosecuting attorney could not be introduced against him. Appellant received the maximum penalty in this case, and the evidence was clearly inadmissible and highly prejudicial.

Upon the trial of this case the court, in substance, told the jury that if appellant unlawfully sold, or caused to be sold through another as his agent, intoxicating liquor to R.C. Thomas, he would be guilty of violating the local option law. Appellant insists that a charge to this effect is erroneous. We have held that a charge along this line is permissible. Evidence that a sale of liquor was made in a local option territory, and that the party making the sale was employed by defendant to sell the liquor and other intoxicants in the place of business, defendant being absent most of the time, and absent at the time of the sale in question, is sufficient to sustain the conviction. All guilty participants being principals in misdemeanor cases, the indictment properly alleged a sale by defendant. For a discussion of this question see McGovern v. State, 49 Tex.Crim. Rep.; 14 Texas Ct. Rep., 369.

For the error pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.