Atkinson v. State , 67 Tex. Crim. 364 ( 1912 )

The appellant was indicted for pursuing the occupation or business of selling intoxicating liquor in Jones County, after prohibition had been duly put in force therein.

Appellant made a motion to quash the indictment and in arrest of judgment on the grounds: First, that it charged no offense against the law; second, it failed to allege that the defendant had made two sales of intoxicating liquor in said county within three years preceding the filing thereof; and, third, because the indictment did not negative the exceptions stated in the law, "except as permitted by law."

The indictment in this case followed strictly the form laid down in Mizell v. State, 59 Tex.Crim. Rep., which has always been adhered to in repeated decisions since by this court. See also Slack v. State, 61 Tex.Crim. Rep.. All the questions raised by appellant in his motions have been uniformly held against him.

The indictment in this case charges that the appellant on or about December 18, 1911, unlawfully engaged in and pursued the occupation of selling intoxicating liquors in violation of the law, after the prohibition law had been theretofore put into force and was then in full force and effect, and that on or about December 18, 1911, he made two different sales of intoxicating liquors to one Otho Gooch, and on or about the same day made other sales to other persons to the grand jurors unknown; and during the months of November and December, 1911, made more than two sales.

The testimony clearly shows by the records of the Wells-Fargo Express Company at Hamlin, in Jones County, and by the persons who had charge of such books and actually made the delivery of intoxicating liquors to appellant, deliveries of intoxicating liquors to him, as follows: On November 4, 1911, four quarts; on November 11, four quarts, and again on the same day six quarts; on November 14, four quarts, on December 10, either six or eight quarts; on December 11, four quarts; on December 23, four quarts, and on the same day another four quarts, making a total of thirty-eight quarts delivered from November 4, 1911, to December 23, 1911; that all of these packages of whisky were shown to have been shipped from the Oak Hall Saloon, in Waco, Texas, to appellant at Hamlin, Texas, in his name, and that they were received by him and receipted for by him on the books of said express company. The testimony as to the signature in two or three of these shipments are not made entirely clear, but is amply sufficient to show that the liquor was received by appellant. The testimony further shows that Otho Gooch purchased two quarts of whisky from appellant, one on December 5 and the other December 19, 1911, and paid him therefor; that at the time the two sales were made appellant was in an old unused and unoccupied — otherwise than by him — storehouse fixing the locality in Hamlin, Jones County. And the testimony also showed by several persons that he was occupying this old storehouse during that time. There was no indication that any other business or work was conducted or done therein by appellant during that time.

Appellant denied making any sale to said Gooch at the time testified to by him or at any other time. He testified that at a different place and at a different time said Gooch took a quart of whisky that belonged to him without his consent and that Gooch afterwards admitted it to him and promised to return it to him or pay for it. Gooch positively denied all of this.

The charge of the court is clear and distinct, following the law strictly, and required the jury to believe, beyond a reasonable doubt, that the appellant at or about the time charged in the indictment and prior to the filing thereof, on January 5, 1912, unlawfully engaged in and pursued the occupation and business of selling intoxicating liquors, as alleged, and at any time after December 1, 1911, and prior to January 5, 1912, did make two different sales of intoxicating liquors to said Gooch, as alleged in the indictment, to find him guilty.

In one separate paragraph of the charge the jury is told that in order to constitute engaging in and pursuing the business of selling intoxicating liquors, it must appear that defendant pursued such business as a business or calling and for profit or gain and it must be shown that at least two sales were made by defendant as alleged between December 1, 1911, and January 5, 1912.

Again, in another separate paragraph, the court charged them that 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 unlawfully engaged in or pursued the occupation or business of selling intoxicating liquors in Jones County, Texas, at the time alleged in the indictment, and that said sales, if any, were made to Otho Gooch prior to the 5th of January, 1912, which is the time of the filing of the indictment in this case, and unless they so believed beyond a reasonable doubt to acquit him. And also in a separate paragraph charged the reasonable doubt.

In addition to this still, the court gave to the jury appellant's third special charge as follows:

"You are further charged that ``in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquor it must appear that defendant pursued such business for profit or gain,' and it must be shown that at least two sales of intoxicating liquor had been made by the defendant. And unless you so believe you will acquit the defendant and say by your verdict not guilty."

None of the appellant's objections to the court's charge are well taken. Neither should the court have given any of the other special charges requested by appellant. The court's charge defining what is meant by engaging in or pursuing the occupation or business of selling intoxicating liquors is more favorable to appellant than other charges on the same subject approved by this court. See Fitch v. State, 58 Tex.Crim. Rep.; Clark v. State, 61 Tex.Crim. Rep., 136 S.W. Rep., 261; Hernandez v. State, 64 Tex.Crim. Rep., 141 S.W. 269-73; Dickson v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 914, recently decided.

We have carefully considered all of appellant's complaints and none of them present any reversible error. The judgment is affirmed.

Affirmed.

ON REHEARING. June 28, 1912.