Bogle v. State , 42 Tex. Crim. 389 ( 1900 )

^* This case should have appeared in the 41st volume of the Texas Criminal Reports, but it only reached the hands of the Reporter on October 26, 1901, after the 41st volume was complete. Appellant was convicted of violating the local option law in Hunt County.

S.H. Reeves, the alleged purchaser of the intoxicants, testified substantially that appellant came to his place of business and took his order for several casks of beer, which order read as follows.

"GREENVILLE, TEXAS, June 23, 1896.

"Dallas Brewery, Dallas, Texas:

"Please ship per freight R.R. to the undersigned, the following goods, this day ordered through your agent. This and all subsequent orders given you by me is payable at Dallas, Texas:

"5 casks quarts, eight bottles.

"20 casks quarts, no label, no foil.

"$8.50.

(Signed) "S.H. REEVES."

Appellant was the agent of the Dallas Brewery, and this order was taken by him, and the goods shipped by said Dallas Brewery to the purchaser at the point designated. The order shows the sale to have been at $8.50 per cask. The facts show that the real price was $8, and the 50 cents was freight. So, to sum up, the evidence without contradictions shows that the beer was delivered to the purchaser at Greenville, in Hunt County, over the line of railroad, the freight being added to the real price. As we understand the rule in this State, this constituted a sale in Hunt County, and was therefore violative of the local option law at that point. Northcutt v. State, 35 Tex.Crim. Rep., and authorities there collated. And see also Bruce v. State,36 Tex. Crim. 53. Under the facts stated, we believe this to have been a sale in Hunt County.

This disposes of all the bills of exception with reference to whether the sale was in Dallas and not in Hunt County, and it is not necessary to further discuss them.

Appellant has three bills of exception to the action of the court rejecting testimony offered by himself to the effect that the Dallas Brewery, which he represented in the transaction, reserved the right to reject any and all contracts for the sale of their beer. In other words, all the contracts he made were simply conditional upon the approval of the Dallas Brewery. The court properly rejected this testimony. It is wholly immaterial. It is unquestioned that he represented the brewery; that he was traveling for the express purpose of selling their beer. It is admitted he made the contract — this is proved beyond question and was not denied; that, in pursuance of his contract, the beer was shipped to the purchaser, and that the purchaser agreed to pay the 50 cents freight on each cask. Whether or not he had been the agent up to the time of the sale, the sale and the ratification by the brewery of that sale and compliance with its terms, places defendant in such attitude that he can not deny his own acts and the acts of the brewery, for whom he was agent. But, in this case, there is no question of the fact of his agency; and the mere retention of the right by his principal to "turn down" any orders was strictly within the terms of the contract between the Dallas Brewery and appellant, because it was a part and parcel of his employment and understood between them. If true, and whether it was a conditional sale or not, it became a completed one upon the complying with the terms of the contract by the brewery and the delivery of the goods; and it took the delivery of the goods in pursuance of the contract to make it complete. Without it there would have been no violation of the law.

Appellant's counsel stated in his argument, that if there was a sale, it was by the Dallas Brewery, and not by appellant. Replying to this, State's counsel said: "The defendant's attorney in his argument tries to make this jury believe that, if there is any violation of the law, that the Dallas Brewery Company has violated the law and not defendant. What is the Dallas Brewery Company? It is a corporation or a company, an inconceivable something which could not be convicted; and the defendant is the agent of the company." This was not erroneously improper, if erroneous at all, because the sale was made in pursuance of an order taken by appellant; and the fact that the Dallas Brewery Company, or the members of that company, made themselves particeps criminis in the transaction, would not relieve appellant of being a principal. In misdemeanor cases, all parties to the offense are principals. Houston v. State, 13 Texas Crim. App., 595.

There being no error in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]