Gorman v. State , 52 Tex. Crim. 327 ( 1907 )

Appellant was convicted of selling whisky in a "Blind Tiger," alleged to have been conducted by himself. It is contended that the entry on the minutes of the court of a certificate of the county judge was not in fact entered by said judge but by the county clerk and that the law required that it should be the personal act of the county judge and could not be performed by another. Article 3391, Revised Civil Statutes, uses this language: "The fact of publication in either mode shall be entered by the county judge on the minutes of the commissioners court. And entry thus made, or a copy thereof certified under the hand and seal of the clerk of the county court shall be held sufficient prima facie evidence of such fact of publication." If it is sought to use this entry upon the minutes of the court in order to constitute prima facie evidence of the fact of publication, perhaps, it would be necessary that the county judge should make the entry, as the language seems to be rather strong and of mandatory nature. In this particular case it seems that the county judge had written out the order and the county clerk had copied it into the minutes at the suggestion or order of the county judge. This, perhaps, would be sufficient. If the judge has not in person made the entry, or there has been no entry at all, still evidence can be introduced of the publication, independent of the entry. It might not constitute prima facie evidence of the fact of publication but it would be sufficient evidence whether prima facie or not, if it were proved otherwise. Such has been the rule since Ezzell v. State, 29 Texas Crim. App., 521.

The facts show the county judge handed a copy of the order putting local option into effect to the clerk to be entered by him and it was entered as shown by the evidence. This, with the other proof in this connection, we hold is sufficient to show that the publication was made as a necessary step to local option going into effect. And we further hold that it was a sufficient predicate for the court, under the facts of this case, there being no question of the fact that the law had gone into effect, to instruct the jury that local option was in effect in Upshur County.

It is contended that the proof of another sale or another transaction was inadmissible, that is, a transaction showing a sale in a similar way to that charged in the indictment. We believe in this case this testimony was admissible. Appellant was charged with keeping a "Blind Tiger" and selling whisky by this means and the evidence of other sales was admissible to show the manner of sale and that he was in fact, running or keeping a "Blind Tiger." The State sought to establish this by circumstantial evidence, and it was competent to introduce similar sales to show the method. See Hollar v. State, 7 Texas Ct. App. 552 [7 Tex. Crim. 552] [7 Tex. Crim. 552]; Roach v. State, 47 Tex. Crim. 500; 11 Texas Ct. Rep., 985; Stovall v. State, 97 S.W. Rep. 92.

It was not competent to prove by witnesses that they understood, had heard or been informed that whisky could be bought at public urinals in the town of Big Sandy, or at appellant's urinal. This was hearsay testimony. Nor was it competent for the State to show in the manner done in this case, that appellant had recently before the alleged offense received packages of beer and other merchandise by express. It might be competent to show that recently before the offense, appellant had received whisky by express, or that he had whisky on hand at the time of the alleged offense, for he was charged with selling whisky. Of course, this must be shown by proper and competent evidence. If the express agent had received shipments of whisky directed to appellant and he knew the fact, or the State could prove that fact by other proper evidence, it could be shown, especially so, where it is a case of circumstantial evidence. The evidence, however, here offered was slips of paper which Williams, the express agent, says he took from the books. The books were not offered, nor was there testimony to show that appellant had received the whisky from the express office, nor is it pretended that appellant receipted for the whisky to the express agent. While proper evidence of this character might be introduced, it could not in the manner here shown. Slips made out by the express agent were improperly admitted.

The following charge was given by the court to the jury: "You are charged at the request of the State, that the law provides that a person who has procured retail liquor dealer's license upon the trial for violation of the local option law, that said license is prima facie evidence that the defendant is engaged in the business of a retail liquor dealer. Therefore, if you find from the evidence in this case, that the defendant had procured from P.B. Hunt at Dallas, Texas, a retail liquor dealer's license, and that said license was in force and effect on the date of the alleged sale, then said license would be prima facie evidence of the defendant's guilt, and you will consider same with the other facts and circumstances in this case in passing upon the guilt or innocence of this defendant."

Objection was urged to this charge on the ground that the jury was instructed that the possession of the license was prima facie evidence of appellants' guilt. The Twenty-eighth Legislature, page 55, section 407a, enacted that an examined copy of the entries on the books of the internal revenue collector showing that the United States Internal Revenue liquor or malt license has been issued to the person or persons charged with violating the provisions of that act, should be admissible and be held as prima facie evidence that the person named in the license had paid the United States a special tax as a seller of spirituous or malt liquors, and shall be held to be prima facie proof that the person, or persons paying such tax are engaged in selling intoxicating liquors. Appellant had an internal revenue license for the sale of spirituous liquors and by virtue of the act above mentioned, the same would be evidence that appellant was engaged in the business mentioned in the license, but it would not be proof that he was guilty of the particular sale or offense charged against him in the indictment. The court's charge went beyond the statute and instructed the jury that such license would be evidence of his guilt of the offense charged. This is not correct. See Uloth v. State, 48 Tex.Crim. Rep.; 13 Texas Ct. Rep., 521. We are of opinion that while the indictment is informal and not as technically accurate as it might be, yet it is sufficient to charge the offense.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.