Mirales v. State , 112 Tex. Crim. 67 ( 1928 )

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for two years.

State's witness Ferris Carroll testified that he purchased a soda water bottle full of whiskey from appellant. At the time he made the purchase he was in appellant's home. Melvin Dennis and Johnnie Graham had gone with him to appellant's home, but sat outside while the transaction was being engaged in by appellant and Carroll. Testifying concerning the delivery of the whiskey to Carroll, appellant stated:

"Ferris told me he wanted it for himself and Melvin. I told him I would try to get it for him. Ferris gave me a one dollar bill. Then I went to the door and went outside and got it from some man out there. I knew the other man by sight. He said that his name was Timoteo Oliverez. I told him that I wanted one dollar's worth of whiskey for some man. He gave me a soda water bottle full of whiskey for one dollar. I gave him the dollar. I gave the bottle to Ferris back in the kitchen. I was gone about five or ten minutes from the time I left Ferris until I got back. I did not make one cent on that transaction. I got it for the two men. I was just doing it for a friend."

The indictment charged that appellant "did then and there unlawfully sell to Ferris Carroll intoxicating liquor, said liquor being then and there capable of producing intoxication." Appellant's contention that the indictment charges no offense cannot be sustained. In the cases of Lenz v. State,290 S.W. 167, and Tucker v. State, 251 S.W. 1090, this court held that an allegation in an indictment drawn under the terms of Article 666 P. C. that the accused sold liquor capable of producing intoxication was sufficient to charge an offense.

In the development of its case in chief the state proved by its witness, Carroll, that he had on other occasions purchased whiskey from appellant. The issue of agency was raised by appellant's testimony, it being his contention that he acted as the purchaser's agent in securing the whiskey. This issue was property submitted to the jury. It is well settled that in prosecutions for the illegal sale of intoxicating liquor other sales cannot be shown unless facts are developed which make such other transactions admissible under an exception to the general rule excluding proof of other offenses. Colter v. State, 255 S.W. 406. However, where the accused admits in whole or in part the transactions upon which the state relies for a conviction, but defends on the ground that he was acting as agent for the purchaser, an exception to the rule is presented and proof of other sales is admissible to aid the jury in solving the question of alleged agency. Cannon v. State, 278 S.W. 854; Colter v. State, supra. While the testimony of other sales should properly have come in rebuttal, such testimony became material and relevant in view of appellant's testimony. The anticipation of the issue raised by appellant's testimony, under the facts of the case, manifests no such error as would warrant a reversal. Gregory v. State, 244 S.W. 615.

It is alleged in the indictment that the sale of the whiskey in question was made to Carroll. Appellant contends that the proof showed a sale to Carroll, Dennis and Graham. It is his position that this constitutes a fatal variance. In the case of McGee v. State, Number 11318, opinion delivered October 31, 1928, a contention similar to that here made was overruled.

The state's testimony is sufficient to show that appellant made a sale of whiskey to Carroll. The issue of agency was raised by appellant's testimony. This issue was properly submitted to the jury. We are unable to agree with appellant that the undisputed tsetimony is to the effect that appellant acted as Carroll's agent in securing the whiskey for him.

Finding no error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.