Walker v. State

Appellant was prosecuted under an information alleging that in the town of Cooper, voting precinct No. 1, in the County of Delta, State of Texas, while a public election was being held on July 22nd, to determine whether the sale of intoxicating liquors should be prohibited in this State, he did then and there unlawfully and wilfully give to Henry Nidever intoxicating liquor, etc. When tried he was convicted and his punishment assessed at a fine of $200.

The motion in arrest of judgment was not well taken. By the use of the words "then and there" it was charged that the offense was committed in the town of Cooper. Moreno v. State, 64 Tex. Crim. 660; 143 S.W. Rep., 156; DeLos Santos v. State,65 Tex. Crim. 518; 148 S.W. Rep., 919, and cases cited.

Neither was it necessary for the information to state that appellant was not a druggist, etc. The proviso forms no part of the definition of the offense. Dankworth v. State, 61 Tex. Crim. 157; 136 S.W. Rep., 788; Slack v. State, 61 Tex. Crim. 372; 136 S.W. Rep., 1073.

The other grounds in the motion — that the information charged both a gift of intoxicating liquor and charged that appellant "informed Nidever of the whereabouts of intoxicating liquor," present no ground in arrest of judgment. By the use of the conjunction "and" it is permissible to allege that a misdemeanor was committed in any of the ways defined by the statute. Hart v. State, 2 Texas Crim. App., 39; Davis v. State, 23 Texas Crim. App., 637; Gage v. State, 9 Texas Crim. App., 259; Nicholas v. State, 23 Texas Crim. App., 317; Lancaster v. State, 43 Tex. 519 [43 Tex. 519].

As qualified by the court bill of exceptions, No. 3 presents no error. The information having alleged that the election was held in Cooper, voting precinct No. 1, in the County of Delta, in the State of Texas, the orders of the Commissioners Court creating precinct No. 1 were admissible in evidence as well as the fact that Cooper was in said voting precinct.

The court charged the jury: "If you believe from the testimony in this case, beyond a reasonable doubt, that the defendant, on the 22nd day of July, 1911, and you further believe that said day was an election day as alleged in the information in this case, that the said defendant did then and there unlawfully during the said day on which said election was being held as stated in the information, wilfully give Henry Nidever intoxicating liquor and the said defendant did then and there inform the said Henry Nidever of the whereabouts of said intoxicating liquor, then in that event if you so believe, you should find the defendant guilty as charged herein." The objection that the charge does not require the jury to find that the acts took place "in Cooper in voting precinct No. 1" is rather hypercritical. When we take the complaint and information in connection with the charge, and the reference therein to the information, it is readily seen that it is impossible for the jury to have been misled, or have thought they were authorized to convict the defendant of an offense committed at any place other than as alleged. The evidence suggests no other place and shows beyond question that the offense, if committed, was committed in the town of Cooper; consequently, if subject to the criticism of appellant, we would not be authorized to reverse the case under Article 723 of the Code of Criminal Procedure. It was not necessary to state the purpose for which the election was being held, in the charge. The information sufficiently stated the purpose, and that it was a legal election cannot be questioned under the evidence.

The other criticisms of the charge and grounds in the motion present no error.

The judgment is affirmed. Affirmed.

[Rehearing denied November 27, 1912. — Reporter.]