Lucio v. State

HURT, Presiding Judge.

Appellant was convicted of selling spirituous liquors in quantities of less than one gallon without first obtaining a license therefor, and without having paid the State and county tax for pursuing said occupation, and his punishment assessed at a fine of §450. With reference to the objection urged by apjiellant to the testimony offered by the State of an examined copy from the books of the Collector of Internal Revenue, which was introduced in connection with the testimony of the witness, J. E. Kauffman, we believe that the same was admissible, and refer to the case of Otto Gerstemann (decided at the present term) ante p. 318. With reference to the order of the Commissioners’ Court made in January, 1893, levying a tax of §150 on behalf of Harris County, which was introduced in evidence by the State, we make the same observations that we made with reference to the introduction of similar testimony in said case of Gerstemann v. State. Said testimony, in our opinion, was admissible. Appellant assigns as error the charge of the court, which in substance, told the jury, if they believed from the evidence that appellant pursued the occupation of a retail liquor dealer, as charged in the indictment, then the burden of proof was upon him to show that he had first obtained a license to pursue said occupation. This charge was correct, because it was in the power of appellant to show his license. The question has been repeatedly decided by this court. Appellant proposed to prove that he had paid for and obtained a license to sell malt liquor. The State objected, and the court sustained the objection, and appellant excepted. This action of the court was correct. The evidence was not admissible, because it tended to solve no issue in the case. Nor was it admissible for the purpose of mitigating the penalty; its object was to present a false issue. A license to sell malt beer does not authorize the sale of spirituous and vinous liquors. The charge of the court in regard to the penalty was correct. See opinion in Gerstemann v. State, ante p. 318. Appellant also contends that the judgment should be re'versed because the court should have charged the law applicable to a case of circumstantial evidence. There was no such charge requested, and no objection to this omission in the main charge. This is a misdemeanor, and charges must be requested. We are not to be understood as holding that this is a case of circumstantial evidence alone. We give no opinion on this subject. As to the sufficiency of the evidence, we will say the real issue of fact was fully and fairly submitted to the jury in the charge. It was for the jury to say whether the prima facie case made by the State had been overcome. By the verdict they decided it had not, and we do not feel justified in holding they are wrong. The judgment is affirmed.

Affirmed.