Albright v. State , 164 S.W. 1001 ( 1914 )

DAVIDSON, J.

[1] This conviction was for violating the local option law. The state relied upon the testimony of a witness, who says he was employed by the county attorney as a detective to work up local option cases; that he approached appellant and asked him if he could let him have some whisky. Appellant finally let him have a bottle, for which the detective says he paid' him $2. The defendant took the stand and testified that he let - him have the whisky, but did not receive any pay for it, and did not ask any pay. He is sustained by two other witnesses. When the state’s witness approached appellant with the request to let him have whisky, he was busy at work and spoke to one of his sons, who was near by, telling him to get a bottle of whisky out of the wagon and let him have it. The boy demurred and insisted on not doing so, but his father ordered him to do so, and he finally handed the witness the whisky. The son and the other witnesses all testify that this was the transaction, and no money passed between the parties. This, under our decisions, would be a matter for the jury to decide. See Franklin v. State, 164 S. W. 375, recently decided.

[2] The court charged the jury with reference to principals as follows: “All persons who are present and participate by acts, or encourage by words or gestures, in the commission of an offense, are principals. Now if you find and believe from the testimony, beyond a reasonable doubt, that the defendant did in Gregg county, Tex., on or about the date alleged, acting alone or with his son, sell to the witness T. G. Livsey a bottle of whisky, as alleged, then find the defendant guilty,” etc. Appellant was either a principal in this transaction or was not guilty.' The whisky belonged to him, and he ordered his son to hand the whisky to the alleged purchaser. He was therefore participating in the sale, if the sale occurred, and would be a principal in the transaction. But if he was guilty at all, it being a misdemeanor, he would be treated as a principal, for in misdemeanors principals and accomplices are treated as principals. Such has been the rule in Texas since the rendition of the opinion in Houston v. State, 13 Tex. App. 595.

[3] There was a bill of exceptions reserved to 'the refusal of the court to permit appellant to prove that defendant was a liberal hearted man, accommodating to his neighbors, etc. The court may have properly admitted this testimony, but we do not think it of such importance as to require the reversal of the judgment, even if the ruling was error.

Taking the record as we find it, under present decisions, we believe the judgment ought to be affirmed, and it is accordingly so ordered.