Weil v. State , 48 Tex. Crim. 603 ( 1905 )

Appellant was convicted of violating the local option law, and his punishment fixed at a fine of $50 and twenty days confinement in the county jail.

There are two bills of exception in the record. When Clem Valentine was on the stand, he was required to state, over appellant's objection that he then had on hand from the Texas Kentucky Company, about 48 packages. The objection here was that the same was incompetent and immaterial, and did not affect this case. It has been held that an exception of this character is not good. However, we fail to see how this testimony could injuriously affect appellant. It was not of any extraneous crime in which he was involved; and if proper objection had been taken we could not say that the testimony was injurious to appellant. The second bill is of the same character, and what has been said above applies to it.

Appellant insists that the testimony, as shown by the record does not make out a case of sale by appellant in Houston County, which is a local option county. His contention is, that it shows a sale of the C.O.D. package at Houston, Harris County. We notice that the county judge filed his conclusions of law and fact; and found among other things, that the Texas Kentucky Company did not have any order from Chas. Turner for the whisky, shipped to his address at Crockett, Texas. He further found that C.M. Valentine, the express agent, delivered to Chas. Turner the whisky, in Crockett, Houston County; and that said Turner paid at the time of the delivery, $3.25 therefor to said Valentine, and that the express was prepaid by the consignor, and that the money paid by Turner for said whisky was returned to the consignor, with return charges collect. As his conclusion of law, the judge found, that Valentine was the agent of the express company at Crockett, and was the agent of Simon Weil in delivering the whisky and receiving the money therefor from Chas. Turner, and that there was a sale of whisky to Chas. Turner, and that the sale took place in Crockett, Houston County, prior to the date alleged in the indictment. Now, recurring to the facts, Chas. Turner distinctly testified that he received two packages of whisky on two separate occasions from Texas Kentucky Company at Houston; that on neither occasion did he make any order for said whisky. This testimony is not gainsaid by any witness; and the only thing that even presents a suggestion that the Texas Kentucky Company might have had an order is a letter introduced in evidence by the State, addressed from Houston, October 27, 1904, as follows:

"Mr. Charley Turner,

Crockett, Texas.

Dear sir: We are in receipt of your favor, and have this day shipped you four full quarts of our famous Silver Spring Rye, which we hope will reach you in good condition. We trust the goods will give you satisfaction, and we trust to receive future orders from you as well as from your friends, which will at all times have our prompt attention, etc.

(Signed) Texas Kentucky Company, per Simon Weil, President."

No witness testified as to the authenticity of this letter. Why the letter was offered by the State we do not understand, except that it tended to show a fabrication. At any rate, if the order had been received from appellant by the Texas Kentucky Company, it would have been a very easy matter for appellant to have produced that order; if the same had been lost or destroyed, proof thereof could have been made, and the contents thereof testified to. In the face of the testimony of Turner, it occurs to us that some effort should have been made to have counteracted his testimony, so as to have shown the receipt of an order from him. We believe the county judge was authorized to find, as he did, that no order for the whisky was made by Turner; and that the shipment of the whisky into the local option territory was voluntary on the part of the Texas Kentucky Company, and in the absence of any order. This is corroborated by other circumstances of the case. There being no order, the sending of the whisky into local option territory was the initiative of the transaction and embraced a proposition to sell the whisky to Chas. Turner, in the local option territory, which proposition he accepted when he paid the whisky out of the express office. This transaction comes within the rule laid down in Ashley v. State, 46 Tex. Crim. 471; 10 Texas Ct. Rep., 271.

The judgment is affirmed.

Affirmed.

ON REHEARING. December 21, 1905.