Wilson v. State , 69 Tex. Crim. 567 ( 1911 )

There are but two questions necessary to pass upon which are urged in the motion for rehearing. The first is appellant's complaint of the third paragraph of the court's charge on the ground that it "was calculated to lead the jury to believe that two sales of intoxicating liquor within three years preceding the filing of the indictment will establish the offense with which the defendant is charged, and is on the weight of the evidence." He contends that a charge substantially if not literally as this was condemned and held erroneous by this court in Thomas v. State, 66 Tex.Crim. Rep.; 147 S.W. 262.

In order to properly present this question we will state more fully the entire charge of the court on this subject, and in connection therewith, quote the statute.

The court, in the first paragraph of the charge, in stating the case to the jury, specifically tells them:

"The defendant, Walter Wilson, stands charged by indictment in this case with the offense of unlawfully engaging in and pursuingthe occupation and business of selling intoxicating liquors in Hunt County, Texas, on or about the 12th day of May, 1911. To this charge he has pleaded not guilty." (Italics ours.)

This is as clear, unequivocal and specific as language can make it. No claim can possibly be made that by this statement the jury could in any possible way conclude, or for one moment consider, that two sales of intoxicating liquors constituted the offense. The language is, that he is charged with "unlawfully engaging in and pursuing theoccupation and business of selling intoxicating liquors."

In order to show the charge in contrast with the statute we will, in parallel columns, quote the law and the charge.

The statute, P.C., Art. 589, is: The charge is: "2. Our sta- "If any person shall engage in or tute provides: `If any person pursue the occupation or business shall engage in or pursue the of selling intoxicating liquors, occupation or business of except as permitted by law, in selling intoxicating liquors, any county, justice precinct, except as permitted by law, city, town or subdivision of a in any county, justice county, in which the sale of precinct, city, town or intoxicating liquor has been or subdivision of a county in shall hereafter be prohibited which the sale of under the laws of this state, he intoxicating liquor has been or she shall be punished by or shall hereafter be confinement in the penitentiary prohibited under the laws not less than two nor more than of this State, he or she five years." shall be punished by confinement in the penitentiary not less than two nor more than five years."

The statute is, Art. 591, P.C.: "In order to constitute the en- The charge is: "3. In order gaging in or pursuing the occupa- to constitute the engaging tion or business of selling in or pursuing the occupation intoxicating liquors, within the or business of selling meaning of this law, it shall be intoxicating liquors within necessary for the State to prove the meaning of the law it in all prosecutions hereunder, shall be necessary for the that the defendant made at least State to prove in all two sales of intoxicating liquor prosecutions for the within three years next preceding violation of this law that the filing of the indictment." the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment

It will be seen by the above that the 2nd paragraph of the charge is a literal copy of Art. 589 of the statute itself.

That the next paragraph of the charge is almost a literal copy of the statute, Art. 591. The only difference is that where the statute says, "within the meaning of this law," the court has "within the meaning of the law;" and that where the statute says, "it shall be necessary for the State to prove in all prosecutionshereunder," the charge says "it shall be necessary for the State to prove in all prosecutions for the violation of this law." It will be seen by this that no possible difference, so far as the use of the word "the" instead of "this" is shown, and no possible different meaning could thereby be had either directly or indirectly. Again, where the charge uses the words "for the violation of this law," instead of the word "hereunder," as the statute has it, following the words used, both in the law and in the charge, "it shall be necessary for the State to prove in all prosecutions," is in effect precisely and exactly the same. It would not have been proper for the court, in said 3rd paragraph, to have quoted the word "hereunder" as it is in the statute, but it was necessary and proper to use instead, the words he did use. There is no possibility of any error in the law as stated by the court in this paragraph and as the statute itself states it. The Legislature, by specific enactment, made both of these Articles a necessary part of the law of this offense. Acts of 1909, p. 284. It is never error to charge the law as it is, when appropriate to charge it at all.

Then immediately following the above paragraphs of the court's charge, quoting the statute constituting the offense, he aptly combines the two and tells the jury:

"4. In order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors it is necessary for the State to prove beyond a reasonable doubt that the defendant, Walter Wilson, unlawfully engaged in and followed the occupation and business of selling intoxicating liquors in Hunt County, Texas, at any time between the 1st day of January, 1911, and the 1st day of June, 1911, and that the defendant unlawfully made at least as many as two sales of intoxicating liquors between said dates in Hunt County, Texas, to the parties named in the indictment."

Then immediately following paragraph four, follows paragraphs five and six, as follows:

"5. If, therefore, you believe from the evidence beyond a reasonable doubt that between the 1st day of January, 1911, and the 1st day of June, 1911, the sale of intoxicating liquors was prohibited in Hunt County, Texas, under the laws of this State, and that the defendant, Walter Wilson, did at any time between said dates, in Hunt County, Texas, unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, as alleged in the indictment, and if you believe the defendant unlawfully in said county and State, between said dates, and at or about the dates alleged in the indictment, made as many at least as two different sales of intoxicating liquors to any of the parties named in the indictment, then you will find the defendant guilty as charged; but unless you so find beyond a reasonable doubt you will acquit the defendant."

"6. If you have a reasonable doubt as to whether the defendant engaged in or pursued the occupation of selling intoxicating liquors in Hunt County, Texas, between the 1st day of January, 1911, and the 1st day of June, 1911; or if you have a reasonable doubt as to whether he made as many as two sales of intoxicating liquors to any of the parties named in the indictment on or about the dates alleged in the indictment, then you will acquit the defendant."

In our opinion it would have been impossible for the jury to have believed from these charges that they were authorized to convict appellant if he only made two sales of intoxicating liquors, and the charge in no way can be construed to be upon the weight of the evidence.

The charge of the court and original opinion in this case is in no way in conflict with said Thomas case, nor with the case of Floyd v. State, 65 Tex.Crim. Rep.; 147 S.W. 264, nor with the case of Malthrop v. State, 66 Tex.Crim. Rep.;147 S.W. 1159-60-1, but is in strict accord therewith. A reading of the Thomas case will show that the charge held erroneous in that case was so held because the court specifically, as shown by the opinion in that case, authorized and permitted the conviction of the appellant therein, because he had made two sales and only two sales of intoxicating liquors. The opinion of the court in the Thomas case, after pointing out that there is a clear distinction made by law between the sale of intoxicating liquors in prohibition territory and the following of the business or pursuing the occupation of selling such liquors, says: "The court, however, in this case seems to make the criterion simply two sales as synonymous with pursuing the business or following the occupation of selling intoxicants." Again the court says: "The charge in this case makes the criterion of appellant's guilt depend upon the fact that two sales would constitute pursuing the business. This is not correct. The statute requires that he must pursue the business or follow the occupation of selling intoxicants, and, in addition to that, must make the necessary sales." In this case in no way did the court, either by directly so charging, or by implication, make the criterion simply two sales as synonymous with pursuing the business or following the occupation. But specifically, clearly and without doubt, made the criterion of appellant's guilt depend upon two things, — first, that they must believe beyond a reasonable doubt, that he pursued the business or followed the occupation of selling intoxicants and, in addition, made at least two sales charged and specified in the indictment. The poinion in this case is not in conflict with any other case decided by this court under this law, but on the contrary, is in consonance and in accord with all of them.

The only other contention urged in the motion for rehearing is his 35th ground of his motion for new trial. That ground is:

"The court erred in the 7th and 8th paragraphs of his charge, in that if the defendant ordered the liquor as an accommodation to the other parties, and not as a sale to them, or if he collected the money from the other parties for the liquor before the order was made, whether he did so as an accommodation or not, he would not be guilty." (Italics ours.)

The 7th and 8th paragraphs of the court's charge are:

"7. You are further charged that if the defendant ordered beer and whisky for the parties named in the indictment, or for others, and that the defendant ordered same as an accommodation for said parties, and that he collected the money from said parties before the order was made, then in that event, he would not be guilty of making sales of intoxicating liquors, and you should acquit him in this case."

"8. If you believe from the evidence that the defendant ordered whisky and beer for the parties named in the indictment and that he ordered same as an accommodation for said parties, and that he collected the money from said parties before the order was made, or if you have a reasonable doubt as to this issue, you will acquit the defendant."

Although appellant, in the original presentation of this case, filed an extensive brief, yet he in no way therein, or thereby presented this ground of his motion for new trial. It will be seen by this quoted ground of his complaint, that his contention hinges solely around the fact that said charges required that he ordered the liquor and collected the money for it, for the other parties as an accommodation to them, claiming that "whether he did so as an accommodation or not," he would be guilty. It is now, for the first time, in the motion for rehearing, claimed that these charges were erroneous in that they required the jury to believe "that he collected the money from said parties beforethe order was made," quite a different thing. It is elementary that this court will not review complaints of the charge when first made in this court. In order to authorize this court to review a question on the court's charge the complaint must have been in the court below, either by bill of exceptions or by motion for new trial.

As to appellant's said contention in the court below, the court's charge specifically followed the evidence as made by appellant himself and the whole of it, on this point. In the course of his testimony appellant repeatedly and at different times testified on this point. In speaking of ordering these liquors he said: "I didn't make any money on it, and the money was paid before I ordered; I did it for them as an accommodation." Then in another place, in speaking of ordering the beer and procuring the lunches, he went into a detail statement of how much the beer cost in Dallas, the express charges on it from Dallas to Greenville, the amount he would even pay for the postage stamp, and money order, and the `phone charges, and "in those beer spreads I never did make a five cents out of any of this, but I chipped in like the rest and it was done in my name and that was the way it was done." Again, "at no time on these deals did I ever receive or make a five cents out of the transaction, but I put in my money and drank it with the crowd." Again, "I didn't get anything out of it, — Never received a cent for it." And again, "I was doing all this business for accommodation."

So that the court's charge in said paragraphs 7 and 8 on the ground of complaint made by the appellant in the court below was specifically and directly applicable to appellant's own testimony and his then claim and contention.

On the other point and contention, now for the first time made, if we could consider it, the charge was equally applicable and stated the correct principle under the case made and contention of the parties. The State's contention in the court below on this point was, — first, that appellant did not order the intoxicating liquors as an accommodation or otherwise for the parties, as he claimed he did, but that each order was, instead, a direct sale from him to these respective parties; second, his contention was that in every instance where he made the orders for these liquors, in order to show he did not sell to them, he claimed that he collected the money from the parties before he ordered the liquor, the State contending that he did not do so, but that he frequently and repeatedly collected the money from the partiesafter he had ordered the liquor, and frequently, after the liquors had been actually received and were then ready to be delivered or drunk, thereby making, instead of an order for other parties with their money, a direct sale to them by him.

So that in our opinion thees respective charges 7 and 8 correctly presented the questions to the jury, as raised by the parties on the trial. And appellant's contention in either contingency, whether made in the court below, or first made in this, presents no reversible error. The motion for rehearing is overruled.

Overruled.