128 S.W. 414 | Tex. Crim. App. | 1910
Appellant was prosecuted on information filed in the County Court of Hays County on October 27, 1908, charging him with selling on the 15th day of March preceding to one Maria Martinez intoxicating liquors in violation of law. At a trial had in said court on the 19th day of January, 1909, appellant was found guilty, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail. From this conviction he has appealed to this court, and has assigned several errors, which have been well presented in an able and ingenious brief.
The information on which the prosecution was conducted charged that before the filing of the information in the county of Hays, and State of Texas, "there was held an election in accordance with the laws of this State under authority of an order of the Commissioners Court of said county theretofore duly made and published, to determine whether or not the sale of intoxicating liquor should be prohibited in said county, and the qualified voters at said election did then and there determine that the sale of intoxicating liquor should be prohibited in said county, whereupon the Commissioners Court of said county did pass and enter upon the minutes of said court an order declaring the result of said election and prohibiting the sale of intoxicating liquor in said county, and the county judge of said county did cause said order to be published in a newspaper selected by said judge, in said county, for the length of time and in the manner required by law, and the fact of said publication was by said judge duly entered upon the minutes of the Commissioners Court of said county, whereby the sale of intoxicating liquor was by law prohibited in said county and still is so prohibited, and that thereafter, in said county and State, while the above mentioned law was in force and effect, and before the making and filing of this information, that S.S. Coy did on or about the 15th day of March, 1908, unlawfully sell intoxicating liquors to the person named." Motion was made to quash this information on the ground, in substance, that it did not allege the date or time when said election *381 was held. This has never been held necessary to be done in this State. The information here follows almost literally the form laid down by Willson in his Criminal Forms. See Willson Criminal Forms, section 257, p. 133. Among the grounds urged why the affidavit and information should name the date of the election is that, especially in view of the passage of the recent Act making the sale of intoxicating liquor a felony, it becomes jurisdictional and it is essential to allege the date with a view of proper enforcement of the law. We have heretofore held that where the record showed that there had been successive elections held in the same county for the purpose of determining whether intoxicating liquors should be sold therein, and that both elections resulted in favor of prohibition, and were legally held, a prosecution could be based upon the law by virtue of the first election and that same was not abrogated by the second election, and which remains the law until it is otherwise determined by the people. That holding was made where the elections were held under the same law and where the punishment, at the time of holding both elections, was identical. Whether that rule will apply under the new order of things, we need not now determine. It may well be argued that in view of the fact that there had been a radical and decided increase in penalty, and where the law was different when the last election was held, that by implication, if not directly, that the new election would have the effect, in respect to offenses thereafter committed, to operate as a repeal of all prior elections. It does not, however, become necessary to determine this question here, since, as we have said, at the time of the commission of the offense and at the time the information was filed, and at the time of the trial, the law imposed a penalty by a fine and imprisonment in the county jail. In this case the indictment does state the date of the offense, and states a time within the period of limitation. It also states that the law prohibiting the sale of intoxicating liquors had been duly passed, and was in force. This, we think, is all that is required to be stated.
2. Complaint is made also of the charge of the court on the subject of reasonable doubt, and his action in thereafter giving a special charge at the request of counsel for appellant on the same subject and his conduct and comments in so doing. The charge of the court on the subject of reasonable doubt is as follows: "You are instructed that by the term a reasonable doubt is meant that doubt as fairly and naturally presents itself from the facts which the jury believe to be true; the rule is that all material facts which you believe to be true should lead in such manner to a conclusion, to moral certainty, that defendant is guilty as that you could not reasonably believe otherwise." That this charge was, to some extent, obnoxious to the rule inhibiting the court from commenting on the weight of the evidence, there can be no sort of doubt. Abrams v. State, 36 Tex.Crim. Rep.,
3. At the request of counsel for the State the court instructed the jury as follows: "You are instructed that if you find from the evidence that the United States internal revenue liquor or malt dealers' *383
license has been issued to the defendant for a period of time embracing the date of the sale alleged in the information, that the issuance of said license to said Coy shall be prima facie proof that said Coy has paid the United States special tax as a seller of spirituous or malt liquors and shall be prima facie proof that said Coy is engaged in the business of selling intoxicating liquors." This charge was not excepted to at the time, but is complained of in motion for new trial on the ground that it instructs the jury that the introduction of the United States internal revenue license would be prima facie proof that appellant is engaged in the business of selling intoxicating liquors, or in other words, that this was in effect an instruction that the production of such license made a prima facie case for them that appellant was at the date of the trial engaged in that business. Even if excepted to at the time, we think there is no merit in this contention. The proof of the State was limited solely to the date alleged in the information, which was the 15th day of March, 1908. The trial occurred in January, 1909. There is no evidence in the record showing or tending to show that appellant was engaged in the sale of whisky on the day of the trial. We think, in the nature of things, the instruction was such a one that the use of the present tense for the past could not have misled any jury. The evidence, as usual in such cases, is conflicting. There is testimony in the record which, if believed, shows appellant to be guilty. We have in many cases held that the internal revenue license was admissible, and that the statute making it prima facie evidence was valid. Floeck v. State, 34 Tex.Crim. Rep.; Gerstenkorn v. State,
Finding no error in the record the judgment of conviction is hereby in all things affirmed.
Affirmed.
[Rehearing denied May 18, 1910. — Reporter.]