Davidson v. State

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days confinement in the county jail; hence this appeal.

Appellant excepted to the action of the court instructing the jury that local option was in force in said precinct No. 1 of Knox County. He claims that this matter was in issue on the trial of the case, and the court could not assume the existence of local option and so instruct the jury. We find in the record an order passed by the commissioners court ordering said election. We also find the order counting the vote and declaring the result of said election, and also the order of publication, putting local option in force. All these orders appear to be regular in form. Appellant by bill of exceptions, however, says he objected because the minutes of the commissioners court, in which said orders appeared, had never been signed by the judge or the commissioners, and had not been attested by the clerk, and that said objection put said matter in issue, and that the judge was not authorized to charge, as he did, that local option was in force in said precinct. If it be conceded that the objection stated in the bill of exceptions is equivalent to a certificate of the judge that the ground existed, to wit, that the minutes were not signed, then this was not necessary to give validity to said orders. Being found in the minutes of the commissioners court, it was not necessary that the county judge and commissioners should sign said orders. Lillard v. State (Texas Crim. App.), 53 S.W. Rep., 125. We do not believe that the validity of the local option election or orders of the court were put in issue, and the court was authorized to instruct the jury as it did. Chapman v. State, 37 Tex.Crim. Rep.; Williams v. State, 37 Tex.Crim. Rep.; Benson v. State (Texas Crim. App.), 44 S.W. Rep., 167.

On the trial of the case, while Dan Berry was on the stand, and after he had testified to having received the whisky and turned it over to Dan Roberts, and having received the money from Dan Roberts, paying the freight, and paying the balance to appellant, and also having testified to a letter received from appellant, and exhibiting it in evidence, he was asked by defendant's counsel the following question, "Do you handle the express at the drugstore that comes on the mail hack?" to which he replied, "I do." He was then asked, "Did you consider the whisky a C.O.D. shipment?" Here counsel for the State objected, and the witness was permitted to answer, stating, "I did not," whereupon counsel for the State asked the following question, "Taking the letter of instruction to deliver the whisky and collect for the same, in connection with the shipment, did you not consider the whisky a C.O.D. shipment?" to which witness answered, "I did." This last question and answer was objected to on the part of appellant because it elicited an opinion of the witness. It would seem that this last answer was an opinion which both the State and appellant were seeking to obtain of this witness as to how he considered said package. He had previously answered that having received the whisky marked as it was, as an express agent, he did not consider it a C.O.D. shipment. He was then asked that receiving the package, in connection with the letter which was sent him, how he considered it. And this was objected to as stated, because it elicited the opinion of the witness. We think the letter of instructions which accompanied the package shows very clearly that it required the witness to whom the package was consigned to collect the money in connection with the delivery of said package, and, whether or not it be considered as an opinion of the witness, it is a very clear interpretation of said letter which had been introduced in evidence, and the testimony given by the witness on this point was not error.

Appellant contends that the sale was not in precinct No. 1 of Knox County, but was consummated at Guthrie, in King County; and he complains in this connection that the court gave the following charge: "If you find from the evidence that defendant B.F. Davidson sent the whisky by the mail carrier, addressed to Dan Roberts, in care of Dan Berry, and at the same time sent Dan Berry a letter or note requesting the said Berry to deliver the whisky and collect the money for the same, and then, in pursuance of the request to deliver the goods, said Berry did deliver the goods and did collect the money; or if you should find from the evidence that defendant shipped the whisky into precinct number one to Dan Roberts, the witness, in care of Dan Berry, to be delivered C.O.D. by said Berry, or collect on delivery; and if you so find from the evidence — then the sale would be a sale at the place of delivery, and you will convict defendant," etc. And he insists that the court, in lieu of said charge, or at least as expressing his theory, should have given the following requested charge, to wit: "The jury are charged that, before you will be warranted in convicting the defendant, you must find from the evidence in this case that defendant sent the whisky to Dan Berry to be delivered to the witness Dan Roberts, C.O.D., cash on delivery, and if you do not so find you will acquit defendant." We think that the charge as given differed but little in effect from the requested charge; that is, the charge given instructed the jury to convict if they found that the whisky was sent to precinct No. 1 C.O.D., whereas the requested charge instructed the jury to acquit unless they did find that the whisky was sent into precinct No. 1 as a C.O.D. package. However, the charge as given was a little fuller, in that it referred to the letter of instructions accompanying said package. We do not believe that it was necessary to give the requested instruction, because the jury in the charge given was instructed as to the only grounds upon which they were authorized to convict, and if they did not so find an acquittal followed as a matter of course.

We have examined the record carefully as to the question of sale, in connection with the locus of its consummation. While the witness Berry disclaims any agency from appellant, yet the letter of instructions which accompanied the whisky and was delivered to him, and under which he acted, clearly constituted him the agent of appellant in delivering the whisky and receiving pay therefor. The acts of Berry were performed at Benjamin, in precinct No. 1 of Knox County. He was evidently not authorized to deliver the whisky without receiving pay therefor, as the letter of instructions directed to him clearly indicates; that he acted in that matter for appellant, who lived at Guthrie, King County, and who sent the whisky to Dan Berry to be delivered to Dan Roberts, when he paid for the same; that is, as we understand the letter of instructions to Berry, appellant was not willing to intrust the matter to Roberts, the purchaser of the whisky, nor was he empowered to deliver the same to him, unless the money therefor was paid to Berry, who was authorized to receive and remit it to appellant, the consignor of the whisky. This, as we understand it, was a sale consummated at Benjamin. It was not like the case of Bruce v. State, 36 Tex.Crim. Rep., which depended on its own peculiar circumstances. Nor is it necessary to discuss whether a C.O.D. package of whisky is a sale at the point of destination or to determine how far the Legislature is authorized to go in defining a sale, as in the Act of the Twenty-seventh Legislature, page 262, chap. 96, amended article 402a. We are inclined to the opinion, however, that the Legislature can not change the rule of law with reference to what it takes to constitute a sale or to fix the locus of such sales. Under the facts here as shown above, this sale was not consummated until the money should be paid to appellant's agent, and this was done, as above stated, at Benjamin, when the title to the whisky was transferred. This, as we understand it under the authorities, constituted the transaction a sale at the above named place. See Northcutt v. State, 35 Tex.Crim. Rep.; Bogel v. State42 Tex. Crim. 389. In the last case we would remark that the question did not seem to turn upon the question as to whether a C.O.D. package is a completed sale at the point of shipment or at the point of delivery, but rather involved the question as to an actual sale by an agent in the local option precinct.

We have carefully examined the record, and, finding no error, the judgment is affirmed.

Affirmed.