Needham v. State

| Tex. | Jul 1, 1857

Roberts, J.

Appellant having been indicted and convicted for retailing spirituous liquors in quantities less than a quart, without license, under the Statute of 1856, appealed to the Supreme Court and assigned the following errors :

1st. The Court erred in refusing the first charge asked by-defendant.

2d. The Court erred in not giving the second charge as asked by defendant.

3d. The Court erred in overruling defendant’s motion for a new trial.

The last ground will be considered first. The evidence shows that liquors in less quantities than a quart were bought by witnesses at a house called Needham’s grocery ; that Martin sold the liquor ; that Needham was there frequently, though not oftener than some others ; that it was sometimes called Martin’s grocery; that Needham presented for settlement witness Taylor’s account, which was contracted at that grocery, and he and witness found they were about even.

The force of testimony on the mind is increased by the failure to rebut it, when, from the nature of the circumstances, its falsity can be easily shown, if it be false.

In this case, if there was any reason why the establishment should be called Gorden Needham’s grocery other than that it belonged to him, it could not have been difficult, in so recent a transaction, to have explained it. If Needham did not sell the liquor, but it was really Martin’s, the facts must have been at hand to explain it. And if Needham was settling the accounts of that grocery for another, and not for himself, or if the account so settled did not contain charges of sales under a quart, it must have been easy to show, from witnesses and the books, what the real facts were. The evidence in support of the verdict then was not deficient.

It is contended that the verdict is contrary to the evidence, because the truth established, if anything, that Needham did not sell, but was “ concerned in selling ” the liquor. The Court was asked, and refused to give, a charge" for the purpose of presenting that view of the subject to the jury, (1st charge.) The Statute (2nd February, 1856, page 68, Sec. 5,) enacts “ that if any person or firm shall sell or be in any wise 11 concerned in selling spirituous, vinous, or other intoxicating “ liquors, in quantities less than one quart, without first having “ obtained a license therefor,” &c. By the terms “ or be in any wise concerned in selling ” it was intended to enlarge the sense of the word “ selling ” to its utmost limit, so as to include every possible manner of sale by agent, as agent, by partner, as partner, and the like; and not to make two distinct offences, one for “ selling ” and the other for being “ concerned in selling.” Any other construction would engender the very difficulties of complexity and evasion sought to be avoided by that mode of comprehensive expression. Such must have been the view taken of it by the Court in refusing the charge, and we think rightly.

The second charge asked of, and refused by the Judge, was, in.effect, that the jury should not .rely upon Needham’s having settled a grocery account as evidence to convict, unless they were satisfied that he, knew it contained items of sale less than a quart; which he-gave with the addition, “ that proof (mean- “ ing by the witness) of the quantities sold would be evidence 11 of the items of the account, and his possession and ownership “ of the account brings knowledge of those items home to him.” If there be any error in this charge as a whole, on the ground of charging upon the weight of evidence, it commenced with and rests upon the appellant. He asked the Court to instruct the jury as to the proper conclusion to draw from a given state of facts in the case. He cannot be heard to complain that the Court added in the same connection, a further instruction as to how far that conclusion might be varied by other facts which were also in the case ; if, in both cases, the deduction, permitted by the Court, were equally natural and reasonable. We conclude they were; for Taylor, the witness, proved that he bought and drank at the grocery, liquors in less quantities than a quart, and that Needham settled with him in reference to the grocery account there made.

There are other questions argued, which are not contained in the assignment of errors, and will therefore not be decided.

Judgment affirmed.