No. 3024. | Tex. Crim. App. | Feb 25, 1914
Lead Opinion
This conviction was for violating the local option law. The State relied upon the testimony of a witness who says he was employed by the county attorney as a detective to work up local option cases; that he approached appellant and asked him if he could let him have some whisky. Appellant finally let him have a bottle for which the detective says he paid $2. The defendant took the stand and testified that he let him have the whisky, but did not receive any pay for it and didn't ask any pay. He is sustained by two other witnesses. When the State's witness approached appellant with the request to let him have the whisky he was busy at work and spoke to one of his sons, who was nearby, telling him to get a bottle of whisky out of the wagon and let him have it. The boy demurred and insisted on not doing so, but his father ordered him to do so, and he finally handed the witness the whisky. The son and the other witnesses all testify that this was the transaction and no money passed between the parties. This under our decisions would be a matter for the jury to decide. See Franklin v. State, recently decided.
The court charged the jury with reference to principals as follows: "All persons who are present and participate by acts, or encourage by words, or gestures in the commission of an offense, are principals. Now if you find and believe from the testimony beyond a reasonable doubt that the defendant did in Gregg County, Texas, on or about the date alleged, acting alone or with his son, sell to witness T.G. Livsey a bottle of whisky, as alleged, then find the defendant guilty, etc." Appellant was either a principal in this transaction, or was not guilty. The whisky belonged to him and he ordered his son to hand the whisky *119 to the alleged purchaser. He was, therefore, participating in the sale, if the sale occurred, and would be a principal in the transaction. But if he was guilty at all, it being a misdemeanor, he would be treated as a principal for in misdemeanors principals and accomplices are treated as principals. Such has been the rule in Texas since the rendition of the opinion in Houston v. State, 13 Texas Crim. App., 595.
There was a bill of exceptions reserved to the refusal of the court to permit appellant to prove that defendant was a liberal-hearted man, accommodating to his neighbors, etc. The court may have properly admitted this testimony, but we do not think it of such importance as to require the reversal of the judgment, even if the ruling was error. Taking the record as we find it, under present decisions, we believe the judgment ought to be affirmed, and it is accordingly so ordered.
Affirmed.
Addendum
On a former day of the term the judgment herein was affirmed out of deference to the opinion of my brethren, citing the recent case of Franklin v. State. I did not then believe the judgment ought to be affirmed, nor do I yet believe on the facts appellant ought to be convicted. The State's witness is named Livsey. He testified that he got the whisky from appellant under the following circumstances: "I saw the defendant and asked him if he had any whisky; he said he did. I told him I wanted some; he said all right, and called his son and told him to let me have the bottle of whisky that was in the wagon; the son let me have the bottle of whisky and I paid the defendant two dollars for it." He further testified: "I was employed by the county attorney to hunt for `boot-leggers' and was paid some money once or twice. I got money along as I needed it. You might call me a spotter or detective. I was employed to find out if anybody was selling whisky." The defendant, Toney Albright and Elmer Albright testified positively that no such sale occurred; that this "detective" or "spotter" came to where their father was and asked him for whisky, and was informed that he had no whisky but that his son, Toney Albright, had some. Toney Albright did not want to let Livsey have the whisky, but his father told him to let him have it; he was a good fellow and was all right. All three of these witnesses testified positively that it was a gift and nota sale. The usual rule is that the jury are the exclusive judges of the facts proved and credibility of the witnesses, and under the local option law a purchaser is said not to be an accomplice, and his testimony would afford the basis for a conviction. The Legislature so provided and it is not my business here to question the wisdom of this policy or Act of the Legislature, but I am persuaded that this statute does not cover such a witness as this and was not intended to do so. This statute, as I understand it, does not apply to a case where the "detective" or "spotter" or "spy" himself *120
originates the case and induces men to commit crime. If such are the facts, then he would be a particeps criminis under the rule laid down by this court in the cases of Dever v. State,
In my judgment this motion for rehearing ought to be granted and the judgment reversed, but in accordance with the wishes of my brethren and their views of it, it will be overruled.
Overruled.
Addendum
We copy in full the evidence of the State's witness Livsey as follows: "I live in Rusk County, Texas; know the defendant John Albright; on the morning of September 29, 1913, I went down to the fair grounds in Longview, Gregg County, Texas, saw the defendant, John Albright, and asked him if he had any whisky, he said he did, I told him I wanted some, he said all right and called his son and told him to let me have a bottle of whisky that was in the wagon; his son let me have a bottle of whisky and I paid the defendant two dollars for it. This occurred in Longview, Gregg County, Texas. The State then exhibited to the witness a bottle of I.W. Harper whisky, witness stating `that is the bottle I got from the defendant.' Cross Examined: I was employed by the county attorney to hunt for `boot-leggers' and was paid some money once or twice. I got as much as fifteen dollars. I would get money along as I needed it. You might call me a spotter or detective. I was employed to find out if anybody was selling whisky."
The reporter will copy in full the balance of the statement of facts. Our statute expressly enacts that such witness as Livsey "shall not constitute such person an accomplice." Article 602, Penal Code. That he was an accomplice was in no way raised, suggested or hinted at in *121
this court or the court below, until in Judge Davidson's opinion on rehearing above. Even if the question had been raised in this or the court below, and there had been no statute as above cited, said witness would not have been an accomplice. Minter v. State, 70 Tex.Crim. Rep., 159 S.W., 286" court="Tex. Crim. App." date_filed="1913-04-16" href="https://app.midpage.ai/document/minter-v-state-3916889?utm_source=webapp" opinion_id="3916889">159 S.W. Rep., 286; Holmes v. State,
Affirmed.