Hightower v. State

From a conviction for pursuing the business or occupation of selling intoxicating liquors in prohibition territory, appellant prosecutes this appeal.

At an election held in 1906, the law prohibiting the sale of intoxicating liquors in Nacogdoches County was carried and then duly put in force. The indictment was returned and filed February 16, 1912, alleging that the offense was committed on or about January 14, 1911. It charged the offense in compliance with the statute and alleged eight specific sales to persons named. The State's evidence was sufficient to show that at least five of these specific sales were made, and in addition at least one other which was not specifically alleged. Appellant testified denying each of these sales and said she had made no sale to any person. The evidence showed that she had many times been prosecuted for making individual sales in violation of the prohibition law. Among other things, she testified that all classes of people, during the night and all night long, came to her house, asked for whisky and, it seems, that this had been kept up for some time.

The indictment, in the first part, alleged: "In the name and by the authority of the State of Texas. The grand jurors, for the County of Nacogdoches, and State of Texas, duly organized as such (at the ______ term, A.D. 191_) of the District Court of said county upon their oaths in said court present, etc." Before the trial began, upon the motion of the county attorney, the court permitted the indictment to be amended by inserting "February" and "2," making it read, where inclosed in the brackets, as above, "February Term, A.D. 1912." The court committed no error in permitting this amendment. The allegation was surplusage and a mere matter of form. C.C.P., arts. 598-9; Grayson v. State,35 Tex. Crim. 629; Murphy v. State, 36 Tex.Crim. Rep.; Osborne v. State, 24 Texas Crim. App., 398.

Pursuing the business or occupation of selling intoxicating liquors in prohibition territory is an entirely separate and distinct offense from making individual sales. Under an indictment and trial for the offense of pursuing the business and occupation, it is necessary to allege, as the statute requires, at least two specific sales to persons named. That an accused has been tried and either acquitted or convicted of said individual sales, would present no question of former jeopardy when such specific sales are alleged in this offense The court did not, therefore, err in holding that the former trial for these specific individual sales was not former jeopardy and excluding evidence of an acquittal or conviction either, on the same grounds. Robinson v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 245; Wilson v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 571, and other cases unnecessary to cite.

As qualified by the court, no error is shown in refusing to permit appellant to ask Judge McKnight whether he was swearing the truth in giving his testimony in the County Court trial; nor, in admitting the testimony of Jeff Mora as to the identity of appellant as the person from whom he bought whisky. Nor did the court err in refusing to permit appellant to prove that the State's witness Wallace Jones had been convicted for selling intoxicating liquor, such conviction not having been a felony, and, as has been many times held by this court, a misdemeanor conviction for selling intoxicating liquor in prohibition territory is not an offense involving moral turpitude. Branch's Crim. Law, sec. 868, p. 551. Nor does appellant's bill, as qualified by the judge, that asking appellant on cross-examination by the State, and requiring her to answer, how she accounted for so many people coming to her to buy whisky, show any error. This was proper cross-examination.

There are some complaints by appellant of separate and distinct paragraphs of the court's charge. Also of the refusal of the court to give certain special charges requested by her. None of these present any error. The charge of the court must be considered as a whole when some paragraph or portion thereof only is criticised. The criticism of different paragraphs of the court's charge, in effect, is that thereby the court permitted her conviction if the jury believed the State had shown as many as two separate and distinct sales, and that the court's charge does not define the offense. The charge of the court, taken as a whole, is not subject to any of these objections. The charge gives the substance in full of the statute in substantially, if not literally, the language thereof to the effect that if any person shall engage in or pursue the occupation or business of selling intoxicating liquors in prohibition territory, he shall be punished, etc., "and the law further provides that in order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of the law, it shall be necessary for the State to prove that the defendant made at least as many as two sales, etc." Then, in submitting the case to the jury for a finding, required that they shall believe beyond a reasonable doubt, not only that appellant engaged in and pursued the said occupation and business, etc., but did make two or more sales of such liquor, before they could find her guilty. Both requisites of the statute are plainly charged and both are required to be found before a conviction can be had. This is fully in accord with the many decisions of this court. It is unnecessary to cite them all. See Clark v. State, 61 Tex. Crim. 597; Dickson v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 914; Wilson v. State, 68 Tex.Crim. Rep., 154 S.W. Rep., 571.

In addition to the court's charge this special charge of appellant was also given: "You are instructed that you can not convict the defendant in this case for pursuing the business and occupation of selling intoxicating liquors, as charged in the indictment because she permitted certain parties to leave intoxicating liquors upon her premises. Before you can find her guilty under this indictment, you must find from the evidence beyond a reasonable doubt the following two propositions: First, that she actually made sales of intoxicating liquors in pursuit of the business and occupation of selling intoxicating liquors. Second, and that she was engaged in the business and occupation of selling intoxicating liquors. And if you fail to find the facts to be, or if you fail to find that both facts have been established beyond a reasonable doubt, you will return a verdict of not guilty and this, notwithstanding you believe beyond a reasonable doubt that one of said essential elements has been proven."

One of the specific sales charged in the indictment was to Wallace Jones. In effect, he testified that prior to December 17, 1911, he had done some work for appellant for which she owed him 90 cents; that on Monday about that date he saw appellant at her house and told her he would be back there the following Saturday and that if she could get anything, or was making up any orders for whisky to put him in for a half gallon and he would pay her on Saturday; that he went to her on Saturday and asked if she had gotten the whisky or had it; that she said yes. At the time she was in one room of her house taking a bath and he did not see her; that she told him where to find the whisky, two quarts, under the table; that he found it where she told him and he told her that he would pay her as promised, that is, $3, by paying her the difference between what she owed him, 90 cents, which was $2.10; that he then left, as he told her, the $2.10 on the table, took the two quarts of whisky and left, thus paying her $2.10 cash, and the 90 cents which she owed him for work, for the two quarts of whisky. He didn't know whether she had ordered the whisky for him or not. In effect, she testified substantially the same as appellant, except that she never ordered this whisky for him, but that she herself got Tom Edmonson to order it, and at the same time to order for her some whisky; that Edmonson did order the whisky for her and Jones and brought a gallon to her house before Jones returned that Saturday; that when she had Edmonson to order a gallon of whisky she gave him $3 for that purpose. She said at the time Jones, on Saturday, came and got the two quarts of whisky, she was in the room taking a bath and did not see him, but told him where to find and get the two quarts of whisky and that he told her at the time that he would leave the $2.10 cash on the table, and that, with the 90 cents she owed him for said work, would pay her for the two quarts of whisky. According to her testimony she gave Edmonson $3 to buy a gallon of whisky, which he did; that when Edmonson brought it to her she took her two quarts, half of it, and that Jones, when he got the other two quarts, paid for it, as stated above, but she claims that while she supposes Jones left the $2.10 on the table for her, as a matter of fact, she did not get the $2.10.

Taking the testimony as a whole, this would clearly show a sale by appellant to Jones of two quarts of this whisky and it would not show that she was acting merely as the agent of Jones in ordering this whisky for him and that it was his whisky and not hers, under the decisions. However, appellant requested, and the court refused, a special charge not to consider as a sale said transaction with Jones if he requested her to order, or have someone order, for him some whisky and to pay her therefor out of money then due him and in pursuance of said instructions she ordered or had said liquor ordered for Jones, and in so doing acted as his agent. Instead the court charged them, doubtless because of this special requested charge, and invited thereby, that if said Jones requested her to order whisky for him and if she did so, or had someone else to do so for her, and that she acted as his agent in ordering such whisky, or if they had a reasonable doubt thereof, such transaction would not be a sale to said Jones and not to consider such transaction, unless said Jones paid her for said whisky after it arrived, or at the time of the delivery. Such charge and the refusal of her special charge, present no reversible error.

The State did not have to prove each and every one of the specific sales alleged before appellant could be convicted. It was under the necessity of proving that she followed the business or occupation and made at least two of said alleged sales. The court did not err in refusing appellant's special charge that the State had to prove every one of said sales.

Neither did the court err in refusing appellant's special charges to the effect that if she made only an occasional sale, even on two or three occasions, she could not be convicted of pursuing the business or occupation, and that by the term "pursuing the occupation" is meant that she was engaged in selling intoxicating liquors as her chief business and occupation. Nor that such term means a business in which one engages for the purpose of making a living or obtaining wealth. The evidence did not call for a charge on an occasional sale, and appellant's definition of what is meant by pursuing the business or occupation of selling intoxicating liquors in prohibition territory has all the time been held improper under the statute by the decisions of this court. As stated above, the court's charge and that given at appellant's instance required the jury to believe beyond a reasonable doubt that appellant pursued the business or occupation of selling intoxicating liquors and, in addition, made more than two sales before they could convict. Taken as a whole, and especially in connection with appellant's said special charge given, the charge correctly and substantially submitted every question properly and necessary to be found before a conviction could be had.

The evidence did not call for a submission to the jury of whether or not Whitton was an accomplice and the court did not err in refusing appellant's special charge on that subject.

There being no reversible error, the judgment is affirmed.

Affirmed.

ON REHEARING. March 18, 1914.