Goss v. State

On a former day of the term the appeal herein was dismissed on account of a defective recognizance. A recognizance, made in compliance with the law, has been filed, and the case will be reinstated and considered on its merits.

Conviction was for unlawfully pursuing the business of selling intoxicating liquors in prohibited territory. Specific sales are charged to have been made, one on the 21st of March, 1917, to Lowe Hazlewood, and one on the 14th of April, 1917, to Andrew Roach. Each of them testified to the purchase from appellant of intoxicating liquor at about the time charged in the indictment. One of them testified to two other similar transactions about the same time.

The two express agents testified that a number of shipments of packages purporting to contain beer and whisky had come to the express offices addressed to appellant and in some instances these witnesses testified that the packages had been delivered to appellant and exhibited his receipt therefor, which the witnesses claimed to have seen him sign. In other instances they introduced receipts which they claimed bore his signature. These transactions were quite numerous and covered various dates, most of them during the year 1917, though some of them were in 1916. Another witness testified to the receipt of liquors by express which were shipped in his name at the request of appellant and delivered to the appellant.

The appellant testified and sought to establish an alibi as to one of the transactions laid in the indictment, his testimony going to the point that at the date that the sales were alleged to have been made he was not in Van Alstyne, Grayson County, where the offense was charged to have been committed, but was in Fort Worth. From his testimony it appears that he had received various shipments of intoxicating liquor. He did not go into details as to the particular times of shipments nor question the accuracy of the data given by the express agents with reference to the matter, but claimed that such intoxicating liquors as he had received had been either for his own use, or had been received under circumstances where he and others had put their money together in advance of the shipments and had had the liquor shipped in his name for convenience and not for sale and that he had sold none to either of the parties mentioned, but that that which had been shipped to him had been used by him and others who had joined in ordering it.

There was testimony impeaching one of the State's witnesses who testified to the sales by proof that his reputation for truth and veracity was bad and there was testimony contradicting the other one as to his whereabouts and that of appellant at the time and place of the alleged transaction.

There are no objections to the admission of evidence upon the trial though the several points made in the motion for new trial are also embodied by bills of exception taken to overruling motion for new trial. These bills add nothing to the motion for new trial and the alleged errors of the trial judge in admitting the evidence complained of therein are not available in that no objection to the evidence was made at the time it was admitted. Vernon's C.C.P., pp. 536-537 and cases cited; also pp. 528-529 and 534-535.

The only question presented for review is the sufficiency of the evidence. The credibility of the witnesses who testified that the sales were made was for the jury and the conflict between their testimony and that of appellant upon that issue having been solved by the jury against appellant, is conclusive upon this court. Looper v. State, 74 Tex.Crim. Rep.; Johnson v. State, 200 S.W. Rep., 832; White's Ann. C.C.P., sec. 942, and art. 766.

The law puts the burden upon the State of proving in this character of prosecution that the accused is engaged in the business or occupation of selling intoxicating liquors in territory where the sale is prohibited by law (P.C., art. 589), and has the burden of proving that in pursuance of said occupation he made at least two sales of intoxicating liquor to persons who must be named in the indictment. P.C., art. 591; Fisher v. State, 81 Tex.Crim. Rep.; Gearheart v. State,81 Tex. Crim. 540; Oliver v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 1066. These cases and others in Vernon's P.C., p. 299, hold that proof that appellant made a sale of intoxicating liquor to each of the parties named in the indictment is not sufficient. There must be other proof, but the measure of the other proof is not fixed by law. It has been held, however, in a number of cases that the evidence was sufficient where the two sales alleged were made, and where the evidence showed that the accused had received quantities of intoxicating liquor through the express office or otherwise come in possession of it. Vernon's P.C., p. 300, also p. 314; Wagner v. State, 58 Tex.Crim. Rep.; Waits v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 708; Mills v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 367.

This case, we think, clearly comes within this rule. The explanation of his receipt of various shipments and possession of intoxicating liquor presented an issue which the circumstances authorized the jury to determine against him. Robertson v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 1191.

We regard the evidence as sufficient under the precedents to support the conviction, and the judgment of the lower court is consequently affirmed.

Affirmed.

PRENDERGAST, JUDGE, absent.

ON REHEARING. May 1, 1918.