Andrada v. State, 152 S.W. 910

Andrada v. State

152 S.W. 910 | Tex. Crim. App. | 1912

HARPER, J.

[1] Appellant was indicted, the indictment charging that he “did then and there unlawfully and knowingly sell and give, and cause to be sold and given, spirituous, vinous, and intoxicating liquor to George Conger, the said George Conger then and there being a person under the age of twenty-one years, without the written consent of the parent or guardian or of some one standing in the place and stead of the parent and guardian of him, the said George Conger.” This charged an offense under our laws, and the court did not err in overruling the motion to quash.

[2, 3] The indictment alleging that Conger was under 21 years, alleged that he was a minor, and the indictment, alleging that the-offense was committed in all the ways denounced by article 1054 of the Code, does not render it contradictory and conflicting. Masterson v. State, 20 Tex. App. 574; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Lawson v. State, 17 Tex. App. 292. The indictment in this case is drawn under article 1054 (New Code), while appellant claims, if the evidence would support a conviction, he-should have been prosecuted under article 622 (New Code). The punishment under article 1054 is by fine not less than $25 nor more than $100, and this was the penalty submitted by the court to the jury; the indictment having been drawn under this article. Had the indictment been drawn under-article 622 of the Code, it would have necessarily had to charge that appellant was a retail liquor dealer, and the minimum fine would have been not less than $10, while the-maximum fine would have been $200, or by imprisonment in the county jail for hot exceeding six months, or by both fine and imprisonment. The latter offense was nob charged in the information nor submitted by the court to the jury.

The evidence would show that appellant sold intoxicating liquor to the minor, and it also shows that he “sold it to him in his-place of business,” but it nowhere discloses that appellant held a license as a retail liquor dealer; consequently it is not necessary for us to discuss the issue here sought to be-raised by appellant.

[4] Appellant also insists that his plea of former acquittal ought to have been sustained. Defendant denies making any sale-to Conger at any time, while Conger and Morris positively testify that this prosecution was for a different transaction than that for which he had been tried on the-former occasion. Again, appellant insists-that, as the jury in returning their verdict made no finding as to this plea, the judgment should be set aside. The court properly submitted the plea of former acquittal, and instructed the jury: “You are first instructed that you should first find whether defendant’s plea of former acquittal is true or untrue. If you believe from the evidence-that the sale, if any, for which defendant is-prosecuted in the cause now on trial, and the sale, if any, for which defendant was tried and acquitted on yesterday was one *912and tlie same transaction, tibien you must find in defendant’s favor on said plea of former acquittal and render a verdict of not guilty. * * * If you do not find in defendant’s favor on said plea of former acquittal, then you are charged that if you believe from the evidence beyond a reasonable doubt,” etc., they would convict. A finding that defendant was guilty under this charge ' necessarily included a finding that his plea of former acquittal was not sustained by the evidence. In fact, there is no evidence in the record upon which a jury would have been authorized to so find.

There was no error in overruling the demurrer of defendant to the evidence. If the testimony of Conger was true, it supports the verdict. And neither did the court err in refusing the peremptory instruction requested.

[5] There was no evidence raising the issue that, if the.sale was made, appellant had consent of the minor’s father to make such sale; consequently it was not necessary for the court to charge thereon.

[6] The court did not err in refusing to exclude the testimony of the witness George Conger. This witness testified clearly to two sales, one of bottled beer on one day, and the other of keg beer on the next day, and the testimony was admissible.

The judgment is affirmed.