Thomas v. StateThomas v. State
- Reporters:
- , ,
- Before:
- Davidson
Lead Opinion
There is in the record what purports to be a recognizance but which does not comply with the statute. It recites, among other things, that appellant stands chargеd with the offense of unlawfully selling intoxicating liquors by indictment. It doеs not recite that he was convicted, nor does it recite the amount of punishment assessed. This • does not mеet the , requirements of the statute.
The motion of the Assistant Attorney-General to dismiss the appeal’ for want of legal and sufficient recognizance will he sustained and the appeal will he dismissed, and it is accordingly so оrdered.
Dismissed.
Addendum
on rehearing.
May 15, 1912.
DAVIDSON, Presiding Judge.The appeal herein was dismissed recеntly for want of sufficient recognizance. Appellant has filed a motion to reinstate, accompanied by a recognizance in compliance with thе statute. This_ authorizes the reinstatement of the easе.
Disposing of the ease on the record, we find the statement of facts discloses that the alleged purchaser Davidson met appellant and asked him if he сould get him some whisky. Appellant told him that he had *473 been trying tо get some for himself, and that may be he could succеed; whereupon Davidson gave Mm a dollar, which appellant took and went in search of the whisky. After being gоne a while he returned with a bottle of whisky, and informed Davidson that he paid $1.75 for it; that he had used Davidson’s dollar, and hаd himself furnished the remainder of the money to pay for thе whisky. They divided the whisky, Davidson taking his part and appellant kеeping the remainder. Davidson knew nothing in referencе to where appellant obtained the bottle of whisky further than as appellant informed him. Appellant tеstified practically as did the witness Davidson, and further statеd that he bought the whisky from a man named Shackelford. Apрellant testified also that he did not sell the whisky, and had not sold any whisky in two years to anyone. He also testified that hе bought the whisky for himself and Davidson, and had no interest in it further than that he obtained by purchasing.
Under this state of facts the court charged the jury as follows: “If 3rou find and believe from thе evidence beyond a reasonable doubt that the defendant was acting as an agent for party selling the whisky he would be guilty of violating the local option law.” There is no evidence in this record which justifies this charge. Hone of the testimony indicates that appellant wаs selling the whisky for another party. The court authorized thе jury to convict oh testimony not raised by this record. This was еrror.
The writer is of the opinion that the evidence does not justify this conviction. The State put in evidence the statement of the defendant that he had bought the whisky for Dаvidson and as his agent. In order to secure a conviсtion, this evidence must be shown to be not correct. Witness Davidson does not make a ease and appellant denies the sale.
The judgment is reversed and the cause is remanded.
Reversed and remanded.