Monford v. State , 35 Tex. Crim. 237 ( 1895 )

This appellant was tried under an indictment charging him with pursuing the occupation of selling spirituous liquors, etc., in quantities of one gallon and less, without first obtaining a license therefor. He was convicted and his punishment assessed at confinement in jail for ten days. The indictment in this case is not subject to the criticism made by appellant. The tax for the State is levied by general law; and the allegation that said occupation is one taxed by law, and that the said appellant is indebted to the State of Texas in the sum of $300 occupation tax for pursuing said occupation is sufficient. And in this connection the allegation that said appellant was pursuing said occupation on the 1st day of January, 1895, is a sufficient allegation that said rate of taxation was in existence at that time, and authorized proof back of said date at any time not barred by the statute of limitations, which in this case was two years. The appellant, by bill of exceptions, urges that the court committed an error in allowing the State to prove by the witness, Felix Girardin, that appellant, between the 8th of August, 1893, and the 31st day of May, 1895, was running the dining room department of the Girardin hotel; and, further, that the State was permitted to prove by said witness that during said time he had seen the appellant sell wine and beer. In this we see no error, as, under the indictment for a misdemeanor, the State could lay and prove any time within two years preceding the filing of the indictment in this case. Appellant also insists that the court erred in charging the jury that the fact that appellant had procured a United States revenue license was prima facie evidence that he was engaged in the business and occupation of selling spirituous, vinous, and malt liquors. This question was before this court in Floeck v. State, 34 Tex.Crim. Rep., and was decided adversely to the contention of appellant. The venue in this case, we think, was sufficiently proved. The evidence showed that the United States internal revenue license was granted for Galveston County, and the witness, Girardin, testified that the Girardin Hotel, where appellant was engaged in the business, was in Galveston, and this court judiciously knows that Galveston is situated in Galveston County. See Laws 22nd Leg., (Called Sess.) p. 45. It is contended by appellant that the prosecution in this case failed because there was no proof offered that the Commissioners' Court of Galveston County levied any county tax. While this allegation was charged in the indictment, it is true that no proof was offered to sustain it, but the court, in its charge, limited this feature of the case, and charged only as to the failure to pay the State tax and procure a license on that account. This was permissible, and we see no error in the course pursued. Mansfield v. State, 17 Tex.Crim.

App., 468. In our opinion the evidence in this case sustains the verdict. The State first introduced the United States internal revenue license granted to appellant for the year 1894, and to February 1, 1895, and rested its case. The appellant then introduced a witness, who testified that appellant was running the restaurant department of the Girardin Hotel; that there were two other departments of said hotel, to-wit: the saloon department and the rooming department, the last two kept by other persons than the appellant; that appellant did not keep liquors in his department, but that when guests of the restaurant desired liquors and wines, they were procured from the saloon department. The witness was in the habit of procuring these drinks, the clerk of the restaurant furnishing the money for same. Witness further said that he did not know whether any one ever paid appellant anything for said drinks or not; that he never knew of any other way in which liquors or wines were procured for the restaurant than as stated. Thomas, another witness for the appellant, testified that he never knew of any liquors or wines being sold in the restaurant department; that he had never seen the appellant sell any such liquors in said restaurant department, or anywhere else; that the appellant did not keep any wines or liquors in his restaurant that he ever knew of, but that he did not know whether he did or not. The State, in rebuttal, introduced Felix Girardin, who testified that he saw the appellant sell wine and beer, but never saw him sell any whisky. This proof, in connection with the United States internal revenue license, authorized the jury to find a verdict against the appellant, and the judgment is affirmed.

Affirmed.