Tardiff v. State , 23 Tex. 169 ( 1859 )

Roberts, J.

The statement of facts in this case is signed by the attorneys, but not approved by the presiding judge. By the Code of Criminal Procedure, it is provided, that, “in preparing a statement of facts, the rules in civil suits shall apply, as to the manner and form of preparing and sending up the same.” (Art. 604.) The manner of preparing a statement of facts in civil suits, is, that “ if the parties, or their attorneys, agree as to the facts given in evidence, they shall sign and seal the same, and submit it to the judge, for approval and signature, who shall also sign it, and the statement so made shall be filed as a part of the record of the cause.” (Hart. Dig. Art. 788.) The law requires this participation of the judge, as a means of authentication, and also as a means of enabling the court below to show the facts, upon which the charges were given, and upon which their legality and propriety may depend. Hence it is important that the statement of facts should be signed by the judge as well as by the parties.

If, however, as this question 'is not raised by the parties, the case be considered on its merits, we are not prepared to say that the charge of the court, or the verdict of the jury, were erroneous.

One defence set up is, that the defendant was a clerk, and not a principal, in the establishment, and sold ardent spirits as clerk. Under the supposition that the license law would be attempted to be evaded by every imaginable device, the legislature rendered liable to a penalty “ any person or firm (who) shall sell or be in anywise concerned in selling spirituous, vinous or other intoxicating liquors, in quantities less than one quart, without first having obtained a license therefor.” It will often happen, that the clerk is the only ostensible person in control of an establishment, and if the fact that he was clerk only, constituted a defence, the state might continually find itself pursuing a shadow, in its efforts to find the real offender, who furnished the capital, and who would never be known as the principal, until it became necessary to shelter his clerk from conviction. Therefore, to prevent evasion, the act rendered liable to prosecution, any person, in anywise concerned in selling. (Act 2d February, 1856, page 68.) A clerk is in some-wise concerned in selling. He does the act of selling. His principal may or may not be known. He assumes to do an act, which is lawful only upon a condition. He is presumed to know that the legality of the act, which he is performing, is dependent upon that condition, and therefore, it is not unreasonable, that he be required to ascertain the performance of the condition, which alone will render his act lawful. A similar construction was given to this statute in the case of Needham v. The State, 19 Texas Rep. 836.

Another defence set up is, that the defendant acted under a mistake of fact. (Penal Code, Art. 47, 48.) The evidence was, that one of his principals informed the defendant “ that he had seen Mr. Berry, the county treasurer, and had made arrangements with him.” The very mode of expression by which this information was conveyed, was calculated to impress upon the defendant, a knowledge of the main fact,—that license had not been obtained. It left it probable that the arrangements might be consummated, and that his employers would afterwards get a license, and he chose to act on that probability. It was not an existing fact, supposed or real, that he was mistaken in, for it does not appear, but that some “ arrangements ” had been made with the treasurer. He was simply mistaken in supposing that they would afterwards carry out the arrangements thus commenced, and get a license. That is a very different thing from mistaking the fact that they had a license, and being led into that mistake under no “ want of care ” on his part. (Penal Code, Art. 48.)

Judgment affirmed.