*1 592 45 Texas Eeports. Criminal of This pistol.” a remark of the court carrying should It forbidden by the statute. This indulged. directly clearly conveyed to the minds of the that the court enhance thought should above The $50, the minimum. fine punishment penalty assessed was a of minimum In to testi- punishment. upon objections ruling to its mony regard or admission should rejection refrain from regard it. This is expressing by statute. any opinion provided error, of account reversed re- the cause judgment manded.
Reversed and remanded. B. A. v. James State. February 10, 2819. 1904.
No. Decided Option—Conflicting 1. Theories. —Local presents theories, the evidence be submitted Where both prosecuting proper the witness, under instructions. testimony Under of guilty violating law, option the defendant of the local guilty of defendant not be he would witnesses of offense. such 2.—Same—Place Sale. of - ac- prosecutor, If an defendant order companying it, option territory and had the to a the local place outside in care to the liquor a whisky of the expressed from dealer territory, receipt latter local option into the defendant, having previously latter prosecutor, over turned expressage, outside consummated and its both for of offense. option there was no territory local Legislative to Fix Power 3.—Same—Want Place. Legislature locus, fix its define sale and competent is not regardless to make law, the known rules which authorizes contracts, depend place place of sale their own .make reverse body is transferred and title nor can that passes; where the upon questions the courts this character. decisions Packages—Soliciting. 4.—Same—C. O. D. packages, provisions nor Neither C. reference O. can territory, option local liquors with reference alter whisky solicitation change constituted facts which consignor com- hands in the placed by as soon as it was territory. local option mon outside carrier Hon. before Tried below of Fannin. Court Appeal Bradley. Tom C. law; penalty, the local conviction option violating $50, twenty days. in the county fine and confinement jail case. states opinion Wells, erred The court
Thurmond & and W. Steger appellant. G. in charge special requested defendant’s give refusing 5, number which is as follows: violation “To constitute a sale should that a local law as in this charged necessary taken County, In alleged. made sale to W. M. in Fannin Mappin, 2904.] James v.
to constitute sale must be a and the buyer, ownership a and a seller the the the in must from seller to Fannin property pass buyer County, and a delivery of the take in Fannin and must County; in this connection from you I unless find the charge you evidence beyond doubt the reasonable defendant James the B. A. of the whisky, and while such owner sold the he same to in Mappin Fannin will County, defendant you find not and I guilty; charge you the article delivery the express to company transportation the title passes article the to such to whom party to such article is con- signed, and under such circumstances the express to delivery company delivery consignee our law. if you believe from Therefore, the evidence or have to reasonable doubt Y. delivered Shirley P. Paris, Texas, the express at company whisky the in this case mentioned or Y. consigned to to Mappin Grove, P. at Mappin Shirley then you I not (if any) was made in Lamar and County in Fannin if County, and so believe or have a reasonable doubt you find you will the defendant being not guilty.” Martin, Howard Assistant Attorney-General, for the State.
information charges appellant Map- sold W. H. intoxicating Texas, pin in Fannin County, the local in in said option force county at time sale. that he testified Mappin purchased whisky from and for the same in Fannin appellant County. him this, but that he from P. Appellant denies claims ordered whisky Shirley, whose of business is that he Paris, Texas; in agent in the transaction and was not the agent Shirley. Mappin they court instructed the the whisky if believed appellant sold in On the Mappin County guilty. Fannin he be would question that, he agency if was the appellant instructed believed they agent whisky from and Mappin Paris securing was not agent Shirley, if as whether had a reasonable doubt or not they lie was the agent find not would Mappin, they guilty. said He further that if believed appellant was the "agent of Shirley in Fannin and solicited collected Shirley, as the from whisky Mappin agent money procured to deliver Fan Mappin Shirley nin he County, three the law guilty. charges present These applicable facts, the evidence a convic warrant sufficient tion under first or third last instruction mentioned. As to the above the State submits that if the whisky order for appellant solicited agent afterwards delivered said Shirley on order, appellant Mappin, collected hand, the other as the he acted guilty. agent Map- transaction, not as the pin agent Shirley, and Shirley Fannin have whisky Mappin although appellant may he money, These issues guilty. fairly collected would be were submitted the jury.
45 Grim.—38. Beports. 45 Texas Criminal Appellant was
HENDEBSOH, the lo convicted of Judge. violating law, and assessed at punishment cal a fine of twenty hence this jail; appeal. confinement days county theories, evidence both of presents which should have been However, the court seems to jury. ignored presented properly testimony, on and to prosecutor’s based tried theory adduced we understand by appellant. As case solely it shows that an attache of testimony, Mappin the State’s Grove, show, at County; then that he and a traveling tent peeling potatoes, were James hap- colored man remarked to the he negro Prosecutor he wished there. to be pened said there were whisky. Appellant or four Paul Jones three old had some *3 that he so whisky, and himself. Pros- who ordered did in town to it would take it. He he long get him replied how ecutor asked Prosecutor him that ivas on the 11:30 train. told too long, it get could well, could it show-man get quicker. replied, which appellant to what m. or 10:40 a. Prosecutor asked quart then about 10:30 was $1.10, worth, Prosecutor him and gave he $1.10. said and town, twenty minutes prose- in about thirty towards he went off and in the tent. This was table whisky lying found a quart cutor The told absence. temporary negro during prosecutor’s there placed left Prosecutor and it there. denies that defendant had brought him written order with reference to he made whisky; that and when with reference to a bottle whisky, was cross-examined ordering he order at all it was after whisky he defendant an if gave he replied transaction proved appellant was by when drunk. this, he got where Grove, business in he was to came his place to which, of local prior adoption option, storage, a cold running on afternoon about 5 o’clock of saloon; Sunday Septem- been a had if there was 6, 1903, in and asked a chance came prosecutor Mappin ber there it un- no to whisky. get was Appellant replied way to some get what it that he come; wait for asked him quart less to and to order cost, him it;„ $1.10 cost to order and get and he told would would it $1.10, filled out an on B. P. him he order prosecutor paid and and Paris, his name whisky for one and it Shirley, signed to and quart evidence and to which was introduced in order appellant, said gave sent others. That this' order and by appellant appellant identified and bottle whisky and a was whisky, quart to Paris for the money to expressed appellant, containing next enclosed in box day was address tagged prosecutor. other but the bottle things; he" he said took it out of whisky That as soon as received (appellant) the tent at the it down to box, gave negro and and carried absent; the time that the was tent—Mappin further testified the expressage. Appellant and the 10 was cents transaction, that he out did not make of the he anything did it for accommodation. transaction, his
How, there and and witnesses appellant if was but one James v. 199-4.] 595’ offense, it, told in our truth was no about there opinion appellant hand, If, on the other transaction acquitted. as the testified did, was occurred guilty appellant been These convicted. theories should been pre the court in instructions. thereof, appropriate sented Instead effect transaction, court one as only on the testimony witnesses; predicated appellant substantially, were instructed in if transaction occurred him For guilty. instance, to find by appellant, sisted told evidence, etc., believed from appellant if was etc., that as he Shirley agent solic agent and as such ited mentioned Mappin said said Mappin purchase price collected from thereof agent pro send certain Shirley cured him from Paris (defendant) said delivered Grove, and whisky Mappin, How, there no him guilty. really appellant find testimony Shirley. only the agent testimony subject, aside from transaction, himself, he which specifically came or in anywise denied concerned in his busi agent he But, ness. concede there was some to raise the issue testimony tending Shirley, appellant’s agency and also concede the order show we solicited then tending prosecutor, of the court to make have an effort on the part appellant liable offense, prosecutor, an order criminal he sent *4 it, to had him Paris, express at the accompanying in care at prosecutor Grove; addressed to of and that when the it he received turned over to appellant, package, prosecutor; only not the prosecutor for previously paid whisky, the having paid the on the same from Paris to Grove. expressage Evidently, under the this transaction was consummated at authorities, Paris. The sent; for it was the was before expressage prepaid; Paris, when the at be express was delivered it company State, came the of 36 Texas property prosecutor. Bruce v. Crim. State, 321, Sinclair 53; Rep., 76 S. W. Rep., v. authorities there Law, cited; for of authorities see Am. Eng. collation 17 Enc. of 300, 301. pp. have been the law although prior is insisted may 262,
act the effect Twenty-seventh Legislature, p. of of rule. We it is reply enactment change competent locus, fix its Legislature regardless to define a sale of their Imown rules of which authorizes own law make con- tracts, where of sale making place depend place prop- is competent title much is transferred and less it erty passes; decisions reverse the of Legislature questions of courts upon functions, character. While that its the exercise body supreme it more fix the as liquor can no sale of par- between contracting of law than it determine the ties contravention of rules can Reports. Texas Criminal
'596 intoxicating than it define what commodity, or can other its or it and as whim other; are. If it do can one, can do liquors it define alto- could away intoxicating liquors caprice might suggest, gether. standpoint, under the facts of this ffom appellant’s We believe no the sale completed that there can be question Paris, there. Neither at in the vested ref- C. nor with reference O. packages provision can alter territory the solicitation a local liquors erence to which constituted change prop- facts it the com- soon hands of consignor as placed as erty instead con- mon carrier at' Paris. court charging witnesses, himself and his should ,the vict them, be, him. the facts so to to acquit believed they hand, if as testified the facts to been other believed authorized to convict him by prosecutor, theory. We not deem it discuss necessary do other criticisms nor to discuss the necessary appellant, presented by believe case was tried on a false We special charges requested. theory. remanded. and the cause reversed judgment
Reversed and remanded. dissents. Brooks, Judge,
A. Allison v. A. 17, February
No. 2781. Decided 1904. Election. at Indictment—Bribery offering charging corruptly bribe the accused In an indictment influencing purpose election a primary voter a qualified alleged Congress, be the office' of a candidate vote Congress representative elect nominee held to election was "Congress.” office is no such States, law there United of the below before Tried Limestone. Court *5 Harper. J. Hon. A. election; at a primary a bribe offering a conviction for fine of $20. penalty, necessary. statement
No on file. brief
No Martin, Attorney-General, Assistant Howard Appellant was conviction fined BROOKS, Judge. about That on or as follows: substantially charging indictment unlawfully “did then A. Allison 1902, A. June, 14th day