Pike v. State , 40 Tex. Crim. 613 ( 1899 )

Appellant was indicted and convicted for unlawfully selling intoxicating liquor in violation of the local option law, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail.

Appellant's first assignment of error is: "The court erred in permitting the witness Conley to testify, over the objections of defendant, that during the months of July and August, 1898, while defendant had blackberry cordial for sale, the witness frequently saw drunken men about his place of business." We think the testimony was relevant and material. Appellant having admitted selling blackberry cordial to the prosecuting witness, Harris, but denied that it was intoxicating, it certainly would be admissible and proper to prove that numerous parties were seen around appellant's drugstore drunk about the time that appellant admits having sold the blackberry cordial to the witness Harris. Mr. Wharton says, "Relevancy is that which conduces to the proof of a pertinent hypothesis, being that which logically affects the issue." Whart. Crim. Ev., sec. 33. The testimony may be remote, and its probative force weak, but it complies with the simple test of relevancy. Does the fact offered in evidence go to sustain the hypothesis, that is, does it tend to show that appellant sold the intoxicating liquor? Mr. Greenleaf (volume 1, section 50) says that evidence is relevant "if it tends to prove the issue or constitute a link in the chain of proof, although alone it might not justify a verdict in accordance with it." We think the evidence was admissible on the issue as to whether the same was intoxicating. Black, Intox. Liq., sec. 497; Harkgraves v. State (Texas Crim. App.), 43 S.W. Rep., 331.; Com. v. Nally,151 Mass. 63, 23 N.E. Rep., 660; Com. v. Wallace, 143 Mass. 88, 9 N.E. Rep., 5.

Appellant's second assignment is "that the court erred in permitting the witness Conley to testify that he saw Bob Harris drunk on one Sunday evening in the early part of the month of August, 1898." The date of the alleged sale was Sunday, August 7, 1898. The testimony recited in the bill and in the statement of facts contradicts appellant's proof, and shows that the witness testified that he saw the prosecuting witness drunk one Sunday evening in the early part of August, 1898, and late in the evening. The witness states that witness Fred Tidwell was with him. The judge, in his explanation to the bill, states that Tidwell testified that he was with Harris, the party to whom the cordial was sold, only once at the stable, and states that they drank the liquor bought of appellant. We think the testimony is not only admissible, but very competent, going to show that the prosecuting witness, Harris, was drunk, and clearly identifies the transaction as one and the same transaction.

Appellant's third assignment is "that the court erred in refusing to permit appellant to testify as to his belief and understanding that the blackberry cordial sold by him was purely a medicinal preparation, the sale of which was not forbidden by the local option law, and that he bought it and sold it as such, without any intention of evading or violating said law, and with the honest belief and understanding that he, or any other person, had a perfect right, as a, druggist, to sell it." The gist of this offense is the selling of intoxicating liquor. No other witness testifies, nor does appellant, that he did not know it was intoxicating. No issue of a bona fide mistake of the fact of it being intoxicating is made by him. We think that the sale of intoxicating liquor in a local option district, except upon prescription, or for sacramental purposes, is a violation of the law, regardless of the intent or purpose for which it was sold, and the intent of appellant is irrelevant and immaterial. Black, Intox. Liq., secs. 418, 419; Petteway v. State, 36 Tex.Crim. Rep.; Phillips v. State, 29 Tex. 226.

Appellant's fourth assignment complains of the court's charge in this particular: "If you believe from the evidence that said blackberry cordial can be used as a beverage, and that when so used in sufficient quantities it will produce intoxication, it is an intoxicating liquor within the meaning of the statute, etc. In the case of Decker v. State, 39 Texas Criminal Reports, 20, the term "intoxicating liquor" is thus defined: "Any liquor intended for use as a beverage, or capable of being so used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such a proportion that it will produce intoxication, when taken in such quantities as may be practically drank, is an intoxicant." The court charged the jury: "By intoxicating liquors, as used herein, is meant any spirituous, vinous, or malt liquors, or medicated bitters, or other medicated liquors, capable of producing intoxication when used in sufficient quantity." Under the facts of this case, we do not think that there is any error in the court's charge, such as was calculated to injure the rights of appellant. We held in Taylor v. State (Texas Criminal Appeals), 49 Southwestern Reporter, 590, that it was unnecessary to define the term "intoxicating liquor," because it is commonly understood and known what intoxicating liquors are. Therefore, even if the court's charge, as appellant contends, be inaccurate, we do not think it such inaccuracy as would likely injure the rights of appellant. Black, Intox. Liq., sec. 2; Code Crim. Proc., art. 723 (amended by Acts 1897, p. 17).

Appellant also asked the court to charge the jury as follows: "If the article sold was a medicinal preparation, and was not sold by defendant with the design that it should be used as a beverage, then defendant is not guilty." And, again, appellant requested this charge: "Not every liquor than can by any possibility produce intoxication is an intoxicating liquor, within the meaning of the local option law. But an intoxicating liquor, the sale of which is forbidden by the local option law, is one that is classified as a beverage manufactured and sold with the intent that it shall be sold as such. A liquor that is not manufactured and sold with the intent that it shall be used as a beverage is not an intoxicating liquor, within the meaning of the local, option law, although large quantities of it might produce intoxication." And the charge as contained in appellant's seventh assignment of error is, in substance, the same. Suffice it to say that we do not think that any of the charges presented the law of this case. Petteway v. State,36 Tex. Crim. 97; Phillips v. State, 29 Tex. 226.

Appellant's tenth assignment complains of the court's charge in that clause defining what is meant by "intoxicating liquors," because it went beyond the evidence, and advised the jury that several articles mentioned in this paragraph were intoxicating liquors, which had no relevancy to the evidence. This is a misdemeanor, and we find no bill of exception in the record as to this matter, nor do we think the exception to the same sufficiently reserved in the motion for new trial, nor was a special charge requested in this particular. Furthermore, upon these matters we do not think the court erred. Code Crim. Proc., art. 723.

Appellant's twelfth assignment complains of the court permitting Davis Tidwell to testifiy, over the objections of appellant, that, on another and different occasion than the one charged in the indictment, he and Frank McDonald had together bought from defendant a bottle of blackberry cordial, for which they had paid 20 cents. This testimony was admissible on the question of intent. Dane v. State, 36 Tex.Crim. Rep.; Gilmore v. State, 37 Tex.Crim. Rep.; Pitner v. State, Id., 268; Myers v. State, Id., 331. The evidence shows that Harris, who bought the liquor, was made drunk by it. The other witness who drank it got dizzy, and his head swam. He was 14 years old, and, without his parents' permission, he took the precaution to remain away from home on the night following the evening he drank it. Various witnesses, including appellant, testified that the blackberry cordial contained 13 per cent. alcohol, and would intoxicate; that it had about the same strength as beer. We think the evidence discloses that the blackberry cordial appellant is charged with selling was an intoxicant, and comes within the letter and spirit of the law prohibiting the sale of intoxicating liquors in local option districts. The judgment is affirmed.

Affirmed.