Wales v. State , 86 Tex. Crim. 183 ( 1919 )

Appellant was indicted under the statute which prohibits the selling or giving of intoxicating liquors to soldiers, marines and others in the service of the United States government. The indictment is prolific in allegations and covers apparently every clause of the statute.

The case as made by the State is through the witness Brent, who is a negro policeman or detective in the City of Galveston. He says on Market Street between 25th or 26th Street he saw soldiers and appellant near by. Finally one of the soldiers had a conversation with appellant. Brent became interested and began watching their movements. The soldiers and appellant separated. There were two other soldiers or marines near by who went around the corner of the block. The soldier who was talking with appellant separated from him and went to a door or an opening into a wall at the foot of a flight of steps and stood there. It was about 7 o'clock in the evening or little after the electric lights had been turned on. Appellant disappeared around the corner. Brent followed him. He says after watching him for some time appellant obtained a ladder and ascended to a window at the rear of one of the buildings and went through the window and he could see nothing further of appellant at that time. He then went back and took his station where he originally stood, and later saw appellant a few feet up this flight of steps handing the soldier below him a bottle which he thought was a pint bottle; that it had some fluid in it of a brown color. The soldier left and joined the other two soldiers. They proceeded down the street. He watched them until they went into a cigar and fruit stand; that appellant finally made his appearance, at the same point, and went in where they were. He followed and noticed that one of the soldiers gave appellant a torn two dollar bill. When this occurred appellant reached down to his hip pocket and partially withdraw from it a flask of whisky. Upon seeing Brent he returned the whisky to his pocket. The soldiers went away and Brent arrested appellant. Appellant's testimony denied these transactions, and the fruit vender testified that he was present all the time that Brent said these matters were occurring and that such things did not occur either as to the money, or the conversation of the soldiers, or as to the attempt of appellant to get whisky from his pocket. This is substantially the case on the main facts. In addition, however, we may state that Brent was asked what the bottle contained that he saw appellant give the soldier on the flight of steps. He said he did not know, or anything about it more than he just saw the bottle pass. The distance between himself and this transaction is not stated, but it was the width of the street.

Taking this case from any standpoint, there is not sufficient evidence to show that appellant let the soldier have whisky. At the fruit stand there was no whisky passed. He may have intended, under Brent's testimony, to let the soldier have the pint of whisky he says appellant had in his pocket. Brent prevented it if such was his purpose. The transaction on the flight of steps is not of such importance and the testimony is not of such value as to indicate that it was whisky so as to justify a conviction from that view point. It could have or may have been whisky, but the presumption of innocence and reasonable doubt are in favor of defendant, and under the rules of circumstantial evidence it must be sufficient to exclude every reasonable hypothesis except the guilt of defendant.

There is quite a lot of other testimony in the case bearing upon collateral matters, the impeachment of Brent, etc., but these are not discussed.

Believing that the evidence is not sufficient to justify the conviction, the judgment will be reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. January 21, 1920.