Adams v. State , 48 Tex. Crim. 7 ( 1905 )

Conviction of violating the local option law, punishment being assessed at a fine of $25 and twenty days confinement in the county jail.

The indictment was found by the grand jury, and the district court made proper order transferring same to the county court of Collin County. Appellant made a motion to quash the transcript of the clerk of the district court, because it fails to state the date the district court adjourned. The transcript in this respect reads, as follows: "The State of Texas, County of Collin. At a term of the district court begun and holden within and for the County of Collin, at McKinney, Texas, on the 5th day of September, 1904, which adjourned on the ___ day of _________ A.D. 190 ___, the Hon. J.M. Pearson, judge thereof presiding, the following proceedings were had, in the cause of the State of Texas v. No. 8110, Brack Adams, to wit: September 17, A.D. 1904. This day came into open court, in a body, the grand jury, a quorum thereof being present, and through their foreman, delivered to the judge of this court, the following indictment, to wit:" etc. Then follows the style of the cause against defendant; and which transcript is accompanied by a bill of costs. It also embodies proper order transferring the cause to the county court of Collin County. Article 473, Code Criminal Procedure provides: "It shall be the duty of the clerk of the district court, without delay, to deliver the indictment in all cases transferred, together with all the papers relating to each case to the proper court or justice of the peace, as directed in the order of transfer, and he shall accompany each case with a certified copy of the proceedings taken therein in the district court; and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases." We find in connection with this article, article 471, Code Criminal Procedure, ordering the transfer, and article 472, indicating what cases shall be transferred, but neither state that the certificate of the clerk must show the date when the court met and the date when the same adjourned. In the absence of a showing to the contrary, we will presume that the clerk performed his duty according to law; that is, that he transferred the case and was legally authorized to do so, from the district court. If court had adjourned at the time the transfer was made, this was a matter appellant should have made manifest. But, conceding it was error, the record before us shows that immediately upon the motion being made, the county attorney filed a correct transcript, and this cures all errors complained of by appellant. The statute in reference to the certificate of the district clerk does not prescribe any particular form to be complied with by the clerk in making the certificate. Lynn v. State, 28 Texas Crim. App., 515. We do not find any decision supporting appellant's proposition, that the mere failure to state when the court adjourned, authorizes the quashal of the transcript. We hold that the trial court did not err in refusing to quash the transcript. However, the county attorney filed a correct transcript, as said above, stating the date of the adjournment of the court, before the court ruled upon the motion to dismiss for want of jurisdiction on account of the supposed defect in the transcript. Cantwell v. State, Dallas Term, 1905.

Appellant also complains in his motion that the court required him to go to trial in less than two days after the transcript was filed. We do not think appellant's contention is correct, in view of the fact that the transcript was not filed sometime before. Had it not been a valid transcript, appellant's contention would have been correct under the authorities he cites.

Appellant excepted to the following portion of the charge of the court: "In law a sale is the agreed transfer of property having some value to another for a valuable consideration. A sale may be shown by facts and circumstances as well as by direct proof." Appellant's contention is that said charge is upon the weight of evidence, and that, in order to constitute a sale, it must be for a cash consideration; and that so much of the charge as informed the jury that a sale may be shown by facts and circumstances as well as by direct proof, is squarely upon the weight of the evidence; that it misstates the law in this, in no case is circumstantial evidence sufficient to make out a case as clearly and as well as direct evidence is. We do not think there is error in the charge of the court. A sale may be shown by facts and circumstances as well as by direct proof. So to state is not a charge upon the weight of the evidence; nor is a declaration that circumstantial evidence is as strong as direct evidence.

Appellant excepted in his motion, to the following portion of the charge: "Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, in Collin County, Texas, on or about the 5th day of September, A.D. 1904, did unlawfully sell intoxicating liquor to F.M. Barnes as charged, and that the sale of intoxicating liquor had theretofore been and was then and there prohibited in said Collin County, under and by the laws of this State, then you will find the defendant guilty, and assess his punishment," etc. Objections to said charge are, if the sale of intoxicating liquor had been prohibited in said county, the same was done under and by virtue of the laws of the State, but if done at all it depended upon the legal vote of the qualified voters of Collin County, expressed at an election held for such purpose, and the necessary orders of the commissioners cours of said county to put said law in force in said county. We have heretofore held that the local option election in Collin County was valid. Len Cantwell v. State, decided at the present term. We have repeatedly held that it was proper for the court to leave it to the jury as a matter for them to determine whether or not the sale of intoxicating liquors had been prohibited. Said election in said county was held by virtue of the laws of the State of Texas, and it was not amiss for the court to so state.

The tenth assignment of error is, that the verdict of the jury is contrary to the law and the evidence is conflicting. The evidence for the State shows a sale by appellant of the whisky. It is true that it is circumstantially proven, that he received the money; yet the circumstances are sufficiently cogent to authorize this court to affirm the judgment. The charge of the court is correct; and there being no error in the record, the judgment is affirmed.

Affirmed.

Henderson, Judge, absent.