Hughes v. State

KRUEGER, Judge.

The conviction is for the offense of selling whisky in a dry area. The punishment assessed is a fine of $400.00 and confinement in the county jail for a period of 60 days.

It was charged in the complaint and information in substance that on the 25th day of November, 1944, appellant sold whisky to W. M. Perkins, in Smith County, a dry area. It was further alleged, for the purpose of enhancing his punishment, that he had theretofore, on the 10th day of June, 1944, been convicted of a like offense in cause No. 7179; that theretofore, on the 20th day of April, 1943, he had been convicted in the County Court of Smith County of a like offense in cause No. 7131. To the allegations of the former convictions, appellant filed a plea which he denominated a “plea of former jeopardy” in which he asserted that he had theretofore been tried for said offenses, convicted and paid the fine and costs in each of said cases, etc.

The evidence introduced by the State shows that on the 25th day of November, 1944, appellant sold a pint of whisky in Tyler Smith County, to W. M. Perkins, an agent of the Texas Liquor Control Board. The evidence further shows that theretofore, on the 10th day of June, 1944, he was convicted in the County Court of Smith County for a like offense in cause No. 7179, and that the judgment had become final and had been satisfied. No evidence was introduced by the State relative to appellant’s prior conviction in cause No. 7131. There appears in the record a stipulation to the effect that it was agreed by and between the County Attorney representing the State and appellant that Smith Couny was a dry area.

The trial court, in submitting the case to the jury, submitted only the issue of appellant’s guilt in the instant case and one prior conviction, to-wit, on June 10, 1944, in cause No. 7179, because his conviction of a like offense in April, 1943, in cause No. 7131, had theretofore been utilized in cause No. 7179 to enhance his punishment. Hence no error is reflected by the record in this respect.

Appellant did not testify or offer any affirmative defense. He elicited from the State’s witnesses, on cross-examination, the fact that at the time that they went to his place of business they were dressed as oil-field workers for the purpose of making him believe that they were engaged in such work; and further, that he sold the whisky to them as cough medicine, etc. On this evidence he requestd a number of special instructions to the jury to acquit him if they (the liquor control agents) at the time of the purchase of the whisky, represented themselves as oil-field workers, or if he sold the whisky to them as cough medicine. The trial court declined to comply with these requests, to which he in due time excepted. There is no merit in these complaints. The fact that the liquor control agents failed or refused to inform him, prior to the time he sold them the whisky, what their business was or misrepresented their vocation to him, would not make the sale of the whisky lawful, nor would the fact that he sold it to them as cough medicine make- it so, unless he did it on the prescription of a physician. The record fails to disclose any evidence that the same was upon a prescription of a physician.

His chief complaint is that the trial court erred in failing to instruct the jury that if appellant acted as the agent for the purchaser (a representative of the Texas Liquor Control Board) in obtaining for him the liquor in question to acquit him and in declining- to give his special requested charges submitting such issue to the jury. If the evidence had raised such an issue then appellant would have been entitled to such an instruction, but it is not raised by any evidence adduced on the trial. Hence we overrule his contention.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeal and approved by the Court.