Witherspoon v. State

Appellant was convicted of engaging in the sale of intoxicating liquors in Ellis County without first having obtained a license therefor. The indictment charged him in the second count with failing to post tip his license required by law. On the trial the court submitted the first count only, which charged the offense of which appellant was convicted. Motion was made to quash the indictment, "because it was duplicitous, in charging different and distinct offenses against the law, when the facts to sustain one would be sufficient to convict the defendant of both or either of said offenses, and because the indictment is not the act of the grand jury, because not signed by the foreman." The statue expressly provides that it is not necessary for the foreman of the grand jury to sign the bill of indictment; and we fail to comprehend how an indictment can be duplicitous when it charges two offenses in different count in a misdemeanor case. As above stated, the indictment in the first count charged defendant with engaging in selling intoxicants, and in the second count with failing to post up his license as required by law. It was not error to charge these different offenses as they were charged in this indictment. See Hall v. State, 32 Tex. Crim. 474.

Nor was there any error in permitting the county attorney to sign the name of the foreman of the grand jury to the indictment. It did not affect the indictment one way or the other. It was wholly immaterial whether the indictment was or was not signed, for it is expressly so provided by the statute.

Some remarks were made by the assistant county attorney in regard to the testimony of one of the witnesses, who stated that defendant threatened to kill any one "who would give him away" in reference to illegal sales of whisky. The testimony was in the record, and the county attorney had the right to comment upon it.

There was no error in the action of the court permitting the county attorney to introduce the order of the Commissioners Court levying an occupation tax upon such occupations as were made taxable by the statute. We do not think it was necessary for the Commissioners Court to specify in said order each and every taxable occupation upon which they levied the tax. The general order was sufficient.

Defendant objected to the court permitting the witness Bacon to testify that he had bought whisky of the defendant twenty or thirty times during the last two years. The bill does not state what objections were urged to this testimony; and the rule is well settled that all objections not stated in the bill are waived, and the court is not permitted to supply grounds of objection for the party objecting.

The defendant requested the court to charge the jury that if they believed that the defendant failed to post his license, as required by law, in a conspicuous place in his business house, they would find the defendant guilty; and the Court refused to give such charge, whereupon the defendant excepted. Just why this instruction was requested is not apparent to the court. We can understand why the prosecution might have requested or desired it. The court had limited the consideration of the jury to the first count of the indictment, but he might, under the authority of Hall v. State, supra, have submitted this second count as well, and the jury could have returned a verdict of guilty under both counts. This, certainly, was favorable to the defendant.

Appellant, asked the court to instruct the jury that proof that he made a single sale is not sufficient to show that he was engaged in selling intoxicants. This charge was properly refused. The testimony shows that he was in the habit of selling; that he was engaged in the selling, and sold, to many persons, and twenty or thirty times to one single witness. He also requested the court to instruct the jury, if they believed from the evidence that he sold whisky to Bacon and others, but that such sales were made as the agent or employe of one Sam Freshman, and not for himself, to find the defendant not guilty. This is the reverse of the law. The evidence shows that Sam Freshman lived in Dallas; and if Freshman paid occupation taxes and took out his license in Dallas County, this did not authorize him to engage in that business in Ellis County; and defendant is required to take notice of the fact that his employer has license to sell at the place where he engages in the business. The decisions, so far as we are informed, are uniform on this question. We think the evidence in the case fully supports the conviction, and the judgment is affirmed.

Affirmed.

MOTION FOR REHEARING BY RUSSELL CALLAWAY, FOR APPELLANT. Now comes Alex. Witherspoon, appellant, and moves the court to grant him a rehearing in this cause, which was affirmed on Wednesday, February 2, 1898, and for grounds of motion says as follows:

First. The court erred in affirming the judgment of this cause for the reason that the indictment is insufficient to sustain said judgment — in this, it does not affirmatively show or allege that appellant pursued the occupation named therein without first having paid the tax.

Second. The court erred in affirming such judgment for the further reason, that the evidence fails to show that any sales of any kind of liquor were made after the County Court of Ellis County had levied the occupation taxes for said county. Again, there is nothing in the record that shows or indicates that there was a levy of county occupation taxes or other occupation tax for the preceding year. The testimony as to sales of liquor by appellant is that it was done in the year 1896. No date is given, and it fails to show whether it was in 1896 prior or subsequent to the levy by the Commissioners Court of the occupation taxes for the county.

It is incumbent on the State to prove, first, that sales were made; second, that the County Commissioners Court had levied an occupation tax; and third, that such sales were made subsequent to the levy. It is a matter of affirmative proof. Pettaway v. State, 36 Tex.Crim. Rep..

ON MOTION FOR REHEARING.