Johnson v. StateJohnson v. State
- Reporters:
- , ,
- Before:
- Prendergast, Davidson
The Legislature has power to adopt remedial legislation in aid of the enforcement of the prohibition law, and the contention that the Allison Law prohibiting the unlawful transportation, carriage and dеlivery of intoxicating liquors into local option territory was invalid because it was enacted after prohibition had been adopted in the county of the prosecution is untenable. Following Fitch v. State, 58 Texas Crim. Rep., 366.
2.—Same—Constitutional Law—Intoxicating Liquors—Allison Law.
The Act of the Legislature known as the Allison Law prohibiting the unlawful transportation, carrying and delivering of intoxicating liquors into local option territory except by a person who is a resident therein for his personal use, etc., is constitutional. Following Ex parte Muse, 74 Texas Crim. Rep., 476, and other cases. Davidson, Judge, dissenting.
3.—Same—Indictment—Statutes Construed.
Where the indictment charged the defendant with unlawfully transporting, carrying and delivering intoxicating liquors into local option territory, there was no error in overruling a motion tо quash the indictment on the ground that the Act of the Legislature under which the prosecution was brought was enacted after prohibition had been adopted in the county of the prosecution. Davidson, Judge, dissenting.
4.—Same—Indictment—Voting Precinct.
In a prosecution for unlawfully transporting, etc., intoxicating liquors into local option territory and delivering the same to another, it was not necessary to allege the names of the various voting precincts in the county of the prosecution, the allegation that prohibition had been adopted therein, etc., being sufficient.
5.—Same—Indictment—Pleading—Several Offenses.
Where the indictment charged that the defendant on a certain date in the county of the prosecution, wherein prohibition was in force, did unlawfully transport, carry and deliver one quart of intoxicating liquors to “H.,” etc., a complaint that the indictment charged three separate offenses is without merit, as the offense could be alleged to have been committed in all of the ways set out in the statute, and proof that the offense was committed in either of the ways alleged would sustain the conviction.
6.—Same—Rule Stated—Several Offenses—One Count.
If several offenses are embraced in the same general definition and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. Following Howell v. State, 29 Texas Crim. App., 592, and other cases.
7.—Same—Sufficiency of the Evidence—Case Stated—Allison Lаw.
Where the indictment alleged and the proof showed that defendant procured intoxicating liquors from some other point in this State and did trans
8.—Same—Evidence—Circumstances—Receptacle of Liquors.
Where defendant was prosecuted for carrying, transporting and delivering whisky in prohibition territory for illegal purposes, there was no error in admitting testimony as to the contents of a certain valise in which it had been carried, and permitting the valise to be opened in the presence of the jury and introducing it and its contents in evidence, the same having been sufficiently identified.
9.—Same—Evidence—Intoxicating Liquor—Bottles in Evidence.
Where defendant was being prosecuted for carrying, transporting and delivering whisky into prohibition territory for illegal purposes, there was no error in admitting testimony that the bottles containing the whisky and introduсed in evidence in fact contained whisky. Davidson, Judge, dissenting.
10.—Same—Evidence—Circumstances—Identity of Defendant.
Where, upon trial of carrying, transporting and delivering whisky in prohibition territory for illegal purposes, defendant contended that it could not be shown that he had handled a certain grip or valise containing the whisky designed for a person residing in prohibition territory, there was no error in admitting testimony that the grip was handed out by someone in the railway coach to another person who ran and threw the grip under the coach when the officers approached; it being show that the grip had defendant‘s name on it and the circumstances rendered it certain that defendant was the man who handed the grip out of the coach.
11.—Same—Evidence—Res Gestae—Other Liquor.
Where defendant was charged with carrying, transporting and delivering one bottle of whisky into prohibition territory for illegal purposes, and it was developed on trial that the same was carried in a certain grip owned by the defendant, there was no error in permitting the entire contents of the grip containing twelve bottles of whisky to be introduced in evidence.
12.—Same—Charge of Court—Several Offenses.
Where defendant was charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction could be had if the offense was committed in either of the ways alleged in the indictment, and there was no error in so instructing the jury. Following Copping v. State, 7 Texas Crim. App., 61.
13.—Same—Several Means Alleged—Delivery.
Where defendant wаs charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction would be authorized even if the whisky was not delivered, the evidence showing that defendant transported and carried the same as alleged in the indictment; besides, the delivery by defendant to a go-between was a delivery to the party intended.
14.—Same—Agency—Sale.
Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and merely acted as the agent of the person to whom he carried and delivered the liquor,
15.—Same—Agency—Sufficiency of the Evidence—Use—Purpose.
Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and the proof sustained the allegations, and showed that he acted as the agent of the person to whom the liquor was delivered, the evidence wholly failing to show to what use the liquor was intended to be put when received, defendant is guilty of a violation of section 4 of the so-called Allison Law. Prendergast, Presiding Judge, concurring, holding that it was immaterial for what use the liquor was intended. Davidson, Judge, dissenting.
16.—Same—Negative Averments—Personal Use Not Involved.
Where defendant was charged with carrying, transporting and delivering intoxicating liquors into prohibition territоry for illegal purposes, it was not necessary to negative any of the exceptions set out in the statute (although this was done), and if the evidence showed that defendant did either carry, transport or deliver to another in prohibition territory intoxicating liquors, the case is made out against him, unless defendant brings himself within any of the exceptions, and the question of personal use is not raised and need not be discussed.
17.—Same—Sufficiency of the Evidence—Introducing Liquors—Delivery.
Where, upon trial of carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, the evidence sustained the conviction under a proper chargе of the court, there was no reversible error. Davidson, Judge, dissenting.
18.—Same—Personal Use—Statutes Construed.
See opinion, Harper, Judge, holding as there is no testimony that the whisky carried, transported and delivered into prohibition territory was intended for personal use (that question need not be discussed), the conviction is sustained. Prendergast, Presiding Judge, holding that if defendant so carried and delivered said liquor, he was guilty regardless as to what use the person receiving it should make of it. Davidson, Judge, holding that the mere carrying, transporting and delivering of said liquor by defendant to another into prohibition territory would not be a violation of law under the Constitution of Texas, which only prohibits the sale of such liquor.
The opinion states the case.
Head v. Statе, 64 Texas Crim. Rep., 112, 141 S. W. Rep., 536; Ex parte Pollard, 51 Texas Crim. Rep., 488, 103 S. W. Rep., 878; Lewis v. State, 58 Texas Crim. Rep., 351, 127 S. W. Rep., 808; Doyle v. State, 59 Texas Crim. Rep., 60, 127 S. W. Rep., 815.
Holley v. State, 14 Texas Crim. App., 505; Stalworth v. State, 16 id., 345; Steele v. State, 19 id., 425; Bottoms v. State, 73 S. W. Rep., 16; Stephens v. State, 73 S. W. Rep., 1056; Ex parte Massey, 92 S. W. Rep., 1083; Ex parte Brown, 42 S. W. Rep., 554; Dozier v. State, 62 Texas Crim. Rep., 258, 137 S. W. Rep., 679.
Beaty v. State, 53 Texas Crim. Rep., 432, 110 S. W. Rep., 449; Schwulst v. State, 52 Texas Crim. Rep., 426, 108 S. W. Rep., 698.
Clay v. State, 65 Texas Crim. Rep., 402, 144 S. W. Rep., 280; Nicholson v. State, 87 S. W. Rep., 343; Bittix v. State, 87 S. W. Rep., 348; James v. State, 91 S. W. Rep., 227.
HARPER, Judge.—The indictment in this case alleges that prohibition was in force in Lampasas County, and that appellant on or about March 11, 1914, did unlawfully transport, carry and deliver one quart of intoxicating liquor to Horace Griffin, within prohibition territory in this State, from a point within this State to the grand jurors unknown.
Appellant moved to quash the indictment because the Act of the Legislature under which this prosecution wаs brought was enacted after prohibition had been adopted in Lampasas County, making the same argument as heretofore made, that the Legislature was without power to adopt remedial legislation in aid of the enforcement of the prohibition law, and to prevent illegal sales being made. This question was so thoroughly discussed in the case of Fitch v. State, 58 Texas Crim. Rep., 366, we do not deem it necessary to do so again. The contention that the Legislature was without power and authority to pass the law was also held adversely to appellant in the Fitch case, supra. As said in that case, “it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses for new conditions that may arise under the prohibition law,” and if the new enactment has for its object and purpose to aid in the prevention of illegal sales, it is to be commended and not condemned. As to the constitutionality of what is known as the Allison law, this court has heretofore upheld its constitutionality. Ex parte Muse, 74 Texas Crim. Rep., 476, 168 S. W. Rep., 520, and Ex parte Peede, decided at this term and not yet reported.
Neither was it necessary in the indictment to allege the names of the various voting precincts in the county—the allegations that on the 30th day of November, 1910, an election was held under proper authority, and thаt prohibition has been adopted, etc., was sufficient, without naming the various voting boxes in the county.
The complaint that the indictment charges three offenses and is therefore void is, we think, without merit. Section 4 of the Allison law (page 63, Session Acts, 33rd Leg.), makes it an offense for any person to ship, transport, carry or deliver intoxicating liquor to any other person in prohibition territory, except as otherwise provided in the Act. The offense may be alleged to have been committed in all of these ways, and proof that the offense was committed in either of the ways alleged would sustain a conviction. The fact that the pleader could havе elected to
The facts in this case would authorize a jury to find that appellant approached Horace Griffin, who was in Lampasas, Lampasas County, a county where prohibition was in force, and solicited an order for intoxicating liquors, in that he told Griffin he was going after whisky, and asked him if he wanted some. Griffin replied that he wanted two quarts. He then paid appellant $2, and told him he wanted bonded goods, either Hill & Hill or Jersey Cream. Appellant then told him his part of the expense would be 55 cents, and Griffin paid this amount in addition to the price of the whisky. Appellant for some reason did not want to take his valise on the train, and asked Griffin to have Ford Mitchell do so, and this Griffin did. Ford Mitchell carried the grip or valise to the train, and procured Douglass Finley to carry it on the train. This grip had appellant‘s name on it, and witnesses testify that it was light at this time and did not have anything in it unless some light clothing. Appellant is traced on this train to Belton, where he tells witness Barnes he is going to Temple. He is traced back from Belton to Lampasas. When he gets back to Lampasas he hands the valise out of the car window to Ford Mitchell, and then gets off the train. Officer Mace sees Ford Mitchell take the valise out of the window, and when he attempts to arrest him, Mitchell throws the valise under the train. The officer has Mitchell to secure the valise, and when appellant is apprehended the key to the valise is secured from him, and in the valise are found twelve quarts of whisky—five Jersey Cream, two Cascade, four Sunny Brook, and one Hill & Hill, all bonded goods, two of which were intended for Griffin. It is thus made apparent that appellant secured twelve quarts of whisky either in Belton or Temple, carried and transported it to Lampasas, and handed it to Ford Mitchell. These facts we think the record shows beyond question.
Bill of exceptions No. 4 is not in the record before us, and in bill No. 5 appellant complains of the fact that the court allowed the district attorney to open the valise in the presence of the jury and introduce it and its contents in evidence on various grounds. This valise had been identified as the one carried to the depot by Ford Mitchell and placed on the train by Douglass Finley, as the valise handed out of the car window to Ford Mitchell, and which the officer secured from him at the time of the arrest. The officers testified it was in the same condition that it was in at the time it was taken from Mitchell‘s possession, and under
Appellant also objected to Officer Mace being permitted to testify: “I saw Ford Mitchell going to the negro coach, and saw a negro‘s arm handing this grip out to him, and when Ford Mitchell saw him, he (Ford) run and shot the grip under the coach,” the objection being that it was not shown that it was defendant who handed the grip to Ford. Several witnesses testify that there were but two negroes in this coach when it got to the depot—appellant and John Barnes. John Barnes testified that when he went out of the coach he left appellant and appellant alone in the coach; the grip had appellant‘s name thereon, and by exclusion at least the evidence makes it virtually impossible for it to have been any other person than appellant who handed it out. The facts and circumstances render it as certain as it is possible for circumstantial evidence to show any fact—it excludes every other reasonable hypothesis.
The contention that it was not shown to be appellant‘s grip can not be sustained. The evidence and all the evidence shows this beyond question. Neither did the court err in permitting the entire contents of the grip, the twelve bottles of whisky, to be introduced in evidence, even though appellant was charged with carrying, transporting and delivering only one bottle. The evidence was res gestae of and a part of the transaction alleged.
Appellant objected to the charge of the court in one particular only—the indictment alleging that appellant “did carry, transport and deliver,” he insists the court erred in authorizing a conviction if the jury found appellant “carried, transported or delivered“—this time contending that the indictment alleged only one offense, and appellant must be shown to have carried, transported and delivered, all three, before a conviction could be had, while in the motion to quash he had contended that it charged three separate and distinct offenses. As before stated, if several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct, offenses, and may be charged conjunctively in the same count, yet a conviction may be had if the offense is committed in either of the ways alleged. (Copping v. State, 7 Texas Crim. App., 61.) This rule of law has always been followed in this court and is stаted to be the correct rule by Mr. Bishop and other text-book writers.
The court did not err in refusing the peremptory instructions re
But, in the event it is held that he by these acts was merely the agent of Griffin, and that he was merely carrying the whisky to his principal, having no other connection therewith, the evidence in this case wholly fails to show what use Griffin intended to put the whisky when he received it, and the question of whether one can have whisky shipped to him for personal use is not raised by the evidence, and need not be and should not be discussed. Griffin testified he was not a member of Cooper Johnson‘s family; that he was not a minister of the gospel; in
If one carries a pistol, proof by the State that he did have a pistol makes its case; if appellant relies on the exceptions, that he was a traveler, or that he was merely carrying it to his home, he must offer proof of that fact, else the issue is not raised, and a conviction is authorized on mere proof that he had a pistol.
So in this case, when the State proved that appellant had carried and transported whisky from Temple or Belton for delivery to Griffin in Lampasas (where prohibition prevails) the State has made its case, and a conviction was authorized and will be sustained. If appellant desired to bring himself within any of the exceptions, being separate articles of the statute, and not included in the definition of the offense, he should have offered some proof. The record is plain that appellant carried it to be delivered to Griffin; the record is silent as to the use Griffin intended to put the liquor to. So the question of whether one may carry or transport liquor to another in prohibitiоn territory for the personal use of such person is not raised, nor even suggested by the testimony, and, therefore, we do not deem it necessary to discuss that question. And the mere fact that appellant was the mere agent of Griffin does not raise that question when there is no evidence as to the use Griffin intended to put the whisky to. Griffin himself had no right to carry the whisky into the territory except for his own use, and his agent could have no greater right than the principal, and if Griffin had carried the whisky into the prohibition territory, and the State proved that fact, he could be convicted unless he should offer some evidence that it was for his own use, or the use of members of his family. And аs there is no testimony that the whisky was so intended to be used, even if appellant should be held to be merely an agent of Griffin, we will not discuss that theory of the case, although my associates do so, taking opposite views on that question.
The only other bill of exceptions in the record complains of the action of the court in refusing to give a special charge wherein appellant requested the court to charge the jury that they should acquit unless
The facts in this case, to our minds, show that the whisky was being carried into Lampasas County for a purpose prohibited by law. The evidence shows that appellant approached Horace Griffin and asked if he wanted some whisky, and Griffin told him he did—he wanted two quarts. Appellant accepted the money for the whisky, with an understanding that he was to secure the whisky and deliver it to Griffin in Lampasas. He not only accepted the price of the whisky, but collected 55 cents extra—getting a profit over and above the price of the whisky for himself. The facts show an illegal transportation and carriage. There has never beеn any doubt in our minds, and since the passage of the Webb-Kenyon Act, we do not think there can longer be any question that a law of the State prohibiting the carrying and transportation of intoxicating liquors into prohibition territory for the purpose of making illegal sales thereof or for any other illegal purpose is valid and violative of no provision of the Constitution, either State or Federal.
Being of the opinion that the law prohibiting the carrying, transportation and delivery of whisky into prohibition territory for the purpose of making sales thereof in violation of law or for any other illegal or unlawful purpose is valid, and that the evidence in this case mаkes it clear that appellant was carrying and transporting this whisky into prohibition territory for an illegal purpose, the judgment is affirmed.
Affirmed.
Davidson, Judge, dissenting.
PRENDERGAST, Presiding Judge.—As the indictment alleged, and the proof showed, appellant procured intoxicating liquor from some other point in this State, and did “transport, carry and deliver” it to Griffin, in Lampasas County, in this State, where prohibition was in effect, he is guilty, and I agree to the affirmance of the judgment. To “transport” means exactly the same thing as to “carry.”
I base my concurrence in the affirmance of the judgment solely on the ground that appellant carried and delivered the liquor to Griffin in prohibition territory wholly regardless of what use Griffin had for it, or intеnded to put it to, and wholly regardless of what appellant did other than that he carried it and delivered it to Griffin. (Sec. 4, Allison Act, approved August 21, 1913, p. 62.) There is no evidence which shows or tends to show that Griffin intended the liquor for any unlawful purpose whatsoever; but, as I understand it, it tends to show he had it brought and delivered to him for his own use.
Appellant was in no way prosecuted for selling the liquor to Griffin, and as I understand the evidence, he in no way made a sale of it to Griffin, but as I understand the law and the uniform decisions of this court, some of which are cited in section 569, Branch‘s Criminal Law, he acted in the transaction merely as the agent of Griffin and not other
So, even if he illegally solicited an order for the sale of it, that could have no bearing whatever on the case, or any question in it, for he was in no way prosecuted for that offense.
The Webb-Kenyon Act of the Congress has no possible bearing on this case or any question in it.
[Rehearing denied November 25, 1914.—Reporter.]
DAVIDSON, Judge (dissenting).—I can not agree with the result reached in this case. Judge Harper holds that the facts show a sale, and therefore punishable under the charge of сarrying intoxicants into local option territory. Presiding Judge Prendergast holds the facts do not show a sale but only an agency on part of appellant, and nothing else. I agree with Judge Prendergast on this phase of his concurring opinion. Appellant was charged with violating what is known as the Allison bill, the allegation being that he transported, carried and delivered to Griffin whisky in local option territory. The State‘s case, therefore, must rest upon these allegations. Griffin gave appellant two dollars with which to buy him two bottles of whisky, and fifty-five cents to pay or assist in paying his railroad fare to Belton or Temple and return. Appellant bought the whisky in one of the towns mеntioned for Griffin with Griffin‘s money. This constituted him the agent of Griffin. I do not see how, by any possible construction of this testimony, it could be correct to hold that appellant sold Griffin the whisky. If it was a sale appellant violated the local option law in Lampasas County, but he was not charged with this offense, and the facts do not support it. The authorities sustaining my views of it are found collated in Mr. Branch‘s work on Criminal Law, section 569. Quoting from that work: “If defendant is in no way interested on behalf of the seller, but is simply acting as agent of prosecutor, he is not guilty of making a sale.” Key v. State, 37 Texas Crim. Rep., 77; Reed v. State, 44 S. W. Rep., 1093; Crawford v. State, 76 S. W. Rep., 576; Blasingame v. State, 47 Texas Crim. Rep., 582; Rector v. State, 90 S. W. Rep., 41; Short v. State, 49 Texas Crim. Rep., 244; Bowman v. State, 35 S. W. Rep., 382; Brignon v. State, 37 Texas Crim. Rep., 71; Kirby v. State, 46 Texas Crim. Rep., 584; Way v. State, 36 Texas Crim. Rep., 40; Gaston v. State, 102 S. W. Rep., 116; Hood v. State, 35 Texas Crim. Rep., 585; Crawford v. State, 58 S. W. Rep., 1006; Johnson v. State, 44 S. W. Rep., 834; Phillips v. State, 40 S. W. Rep., 270. It was also held if there is evidence that the accused bought liquor from another as agent of the purchaser, and that he was in no way interested on behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Texas Crim. Rep., 572; Treue v. State, 44 S. W. Rep., 829; Strickland v. State, 47 S. W. Rep., 720; Driver v. State, 48 Texas Crim. Rep., 20; Golightly v. State, 49 Texas Crim. Rep., 44;
With due deference to the opinion of my brethren I respectfully enter this dissent.