Gilbreath v. State

Conviction in County Court of Rains County for giving liquor to a minor, punishment fine of $25.

There seems little question of the fact that the prosecuting witness, a minor, was given intoxicating liquor upon the occasion mentioned. He testified positively that appellant gave it to him. We will discuss the complaints made by appellant on appeal in the order in which they appear in the brief.

Appellant insists that the court should have given his special charges Nos. 1, 2, 3, 4 and 5, the refusal of which is complained of in bills of exception Nos. 4, 6, 7, 8 and 9. Said charges in slightly different language seek to have the jury told that before appellant could be convicted in this case he must have knowingly given intoxicating liquor to the witness Adair. In support of his contention in this regard he cites the case of Earnest v. State, 201 S.W. 175, and other authorities therein mentioned. Without questioning the correctness of the cases cited, attention is called to the fact that Art. 1054, Vernon's P. C., which was in force at the time the opinion was handed down in the Earnest case, supra, and which was the law under which the Earnest case, supra, was prosecuted, provided that any person who shall knowingly sell or give or deliver, etc., any intoxicating liquor to a minor, shall be punished. In codifying the Penal Code which was adopted by the Thirty-Ninth Legislature, said Art. 1054, supra, was omitted, and our present statute, Art. 693 of the Revised Criminal Statutes of Texas, omits the word "knowingly" and provides simply that any person who shall give or deliver or cause to be given or delivered, etc., to any minor any intoxicating liquor, shall be punished by a fine of not less than $25.00 nor more than $100.00. It will thus be seen that the element of knowledge is no longer a part of the definition of this offense, and it follows that the special instructions referred to were properly refused.

Appellant's bill of exceptions No. 5 brings forward complaint of the charge of the court which was excepted to because it ignored the defensive theory and did not affirmatively submit same. We are not apprised in any way as to what the defensive theory was, and, therefore, cannot measure the correctness of the exception.

Appellant insists that the testimony does not support the conviction. Clarence Adair testified that appellant and one Pick Dickson came to the place where he was about 8 or 9 o'clock in the evening. Witness said someone called his name and told him to come out there. He went. The person under the steering wheel of the car handed him a fruit jar and he took a drink of the contents, which was whiskey. Asked as to who the person was under the steering wheel, he said it was the defendant. On cross-examination he gave various reasons why he thought the party handing him the whiskey was appellant and not the other occupant of the car, who was well known to witness. On re-direct examination he again said that it was the defendant who gave him the whiskey. A deputy sheriff testified that he saw the defendant and another man in a car on the night in question, and that one of them threw a fruit jar out of the car as the officer approached, and that it contained whiskey. He also said he smelled liquor on appellant's breath that night.

We are unable to say that there was not sufficient testimony before the jury in this case to justify them in concluding that appellant was the party who gave the whiskey to the witness Adair. The witnesses were before the jury and they heard the testimony, and the trial judge, who also saw the witnesses and heard the testimony, refused a new trial in this case.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.