153 S.W. 861 | Tex. Crim. App. | 1913
The indictment charges that appellant, in justice precinct No. 4, followed the occupation of selling intoxicants while local option was in effect, in this: That on or about the 10th of July, 1912, and anterior to the presentment of the indictment, appellant, in justice precinct No. 4, Wichita county, did then and there engage in and pursue the occupation of selling intoxicating liquors in violation of said law, which law was then and there in full force and effect in said justice precinct No. 4, Wichita county, Tex., and that the said Lester did then and there, on or about the said date, to wit, July 10, 1912, make two different sales of intoxicating liquor, one to W. A. Gault, one to E. D. Williams, and one to W. E. Tipton, and on or about the said date did make different and other sales of intoxicating liquor to divers persons, in violation of said law, whose names to the grand jurors are unknown, and did during the months of June and July, 1912, and anterior to the presentment and filing of this indictment, make more, at least, than two sales of intoxicating liquor in violation of said law, which was then and there in full force and effect in said justice precinct No. 4, Wichita county, Tex., against the peace and dignity of the state. The jury gave appellant two years’ imprisonment in the penitentiary.
It was shown by Reid that he was county clerk and was custodian of the records of the county court and had: the records with him. It was also proved that at Electra there was a place known as “Less’ Place.” Terry testified that he had seen the defendant about there and knew the fact that whis-ky and beer had been sold in that place within the last 12 months. Said that he did not see appellant about the place at all at the time he bought beer; all that he knew
The court charged the jury, among other things, in applying the law to the case, that if they found and believed from the evidence beyond a reasonable doubt that appellant engaged in the business of selling intoxicating, liquors in precinct No. 4 of Wichita county, Tex., at any time during the year 1912, anterior to the 1st day of August, 1912, and that if they should find beyond a reasonable doubt that he in person, or by agent or employs or by partner, while engaged in such business, made as many as two different sales of such intoxicating liquors to persons appellant is charged to have made such sales to, within three years next before the filing of the indictment, then they would find him guilty. Appellant excepted to this charge and asked the following requested charge: “You are instructed to find a verdict of ‘not guilty’ in this case unless you find and believe from the evidence beyond a reasonable doubt that the defendant was engaged in the business of selling intoxicating liquors in justice precinct No. 4, Wichita county, Tex., at the times mentioned in the indictment; and that the defendant, while engaged in said business, sold, either in person or through some other person, as his agent, employs, or partner, at least two different sales to one or more of the parties named in the indictment.” This was refused, and the appellant excepted. He asked also a charge that before they could convict they must find that appellant followed the business mentioned and made at least two sales of intoxicating liquors, as the making of sales is defined in the main charge, within three years next preceding the date of the filing of the indictment, “and that in this connection you cannot consider the sale shown to have been made to-Williams of one pint of beer as being one of the two sales necessary to convict.” These charges were refused.
This judgment is ordered to be reversed, and the cause remanded.