Ellis v. State

This appeal is prosecuted from a conviction had in the County Court of Upshur County, on the 8th day of July, 1909, finding appellant guilty of unlawfully selling intoxicating liquors in violation of law in said county and assessing his punishment at a fine of $25 and twenty days confinement in the county jail.

1. When the case was called appellant filed a motion questioning the jurisdiction of the County Court of Upshur County to try the cause for the reason that the order transferring the indictment therein from the District Court of said county was insufficient and invalid. This order is as follows:

The State of Texas, } } No. 3560. June 12, A.D. 1909. County of Upshur. J. }

"It appearing to the court from an inspection of the indictment that this court has not jurisdiction of this case, the same being a misdemeanor, and that the County Court of Upshur County, Texas, has jurisdiction of the same, it is ordered that the said case be, and the same is transferred to said County of said county."

Accompanying it was a bill of costs giving the same number, and it also bore the following indorsement of the district clerk: "No. 3560. In the District Court, the State of Texas v. Hugh Ellis; Transcript of Order to Lower Court. Issued this 19th day of June, A.D. 1909.

T.H. OLIVER, District Clerk, Upshur Co., Texas."

as well as the file mark of the county clerk of Upshur County, dated 22d day of June, 1909. Article 473 of our Code of Criminal Procedure is as follows: "It shall be the duty of the clerk of the District Court, without delay, to deliver the indictments in all cases transferred, together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer, and he shall accompany each case with a certified copy of all the proceedings taken therein in the District Court, and also with a bill of the costs that have accrued therein in the District Court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases." It seems to be beyond doubt true that the indictment reached the proper court accompanied with a bill of costs as required by law. This article does not set out in any detail the matters required to be stated in the order. If we look to the number of the case and the indorsement of the clerk on the order accompanying same, it gives the correct number of the cause as well as the style of the case and fairly meets all the requirements of the law. It will be noted that this order recites that the County Court of Upshur County has jurisdiction of the same and that the word "court" is omitted after the word "county" in the last line of the order. As was said in the case of Dittfurth v. State, 10 Texas Ct. Rep., 511, "it has been held that, in the transfer of cases, a general order, giving the numbers in the District Court and character of offense, is sufficient, and that a particular order is not necessary in each case." Forbes v. State, 35 Tex. Crim. 24; Tellison v. The State, 35 Tex.Crim. Rep.; Malloy v. State, 35 Tex.Crim. Rep., and it was also said: "When this case got into the County Court it was given another number in that court." It was also objected in the Dittfurth case that the transfer there was insufficient in that it did not purport to transfer the case to the County Court of Karnes County. This objection was treated as trivial and the court says: "From the recitations it is sufficiently certain that the transfer was made to said County Court of Karnes County." So there would seem to be no doubt in this case that it sufficiently appears that the case was intended to be transferred and that the order had the effect to transfer the case to the County Court of Upshur County.

2. During the trial while the appellant was upon the witness stand he was asked if it was not true that he had gotten some whisky by express about the 22d day of December, 1908. This was objected to because immaterial, irrelevant, leading and prejudicial to the rights of the defendant. The objection being overruled, appellant stated that he might have got some whisky by express at that time. Waiving the question that the answer was of a character not necessarily to have injured appellant, we think it is competent to show this fact. In the case of Wagner v. State, 53 Tex.Crim. Rep., we held that upon a trial for the violation of the local option law, testimony was admissible to show that defendant was in possession of intoxicating liquors in such quantities as to raise a reasonable presumption that it was for sale and not for use. We think the decision in that case decisive of the matter here complained of and that it is undoubtedly sound on principle.

3. We find in the record a bill of exceptions complaining of the charge of the court in more than one respect. Among other things, it is complained that the court charged the jury that the local option law was in full force, which, it is averred, is stronger language than should have been used in the charge and was calculated to mislead the jury as to the meaning of said terms.

Complaint was also made as to the meaning of the word "sale" and that the court should have charged on circumstantial evidence. This bill is allowed with the explanation that the appellant did not ask a charge either in writing or orally on circumstantial evidence. It also appears in the record that no special charges were asked by appellant. In the first place, the complaints, as we believe, are without merit. Besides, appellant asked no special charge covering the matters complained of.

Finding no error in the record, it is ordered that the judgment of conviction be and the same is hereby in all things affirmed.

Affirmed.

ON REHEARING. June 15, 1910.