148 S.W. 306 | Tex. Crim. App. | 1912
Appellant was prosecuted for keeping a disorderly house, in that he kept and was concerned in keeping a house in which spirituous, vinous and malt liquors were sold and kept for sale, without first having obtained a license to retail such liquors.
This was not a prosecution for violating the local option laws, and it was improper to permit the State to introduce the orders of the Commissioners Court putting prohibition in force in Johnson County. Such evidence would not tend to support any allegation in the information, and it could only tend to prejudice the jury by calling attention to the fact that appellant was charged with keeping liquors for sale in a county where the sale was prohibited.
It is also shown by bills of exception that while Trice, a witness for defendant, was testifying, on cross-examination, he was asked if he knew Swift Newberry, Jake Looper and Baylor Looper, and if he ever saw them in defendant's place of business, and over objection of defendant the witness answered that he knew these men, and had seen them in defendant's place of business. It is further shown that in the concluding argument the county attorney stated to the jury: Gentlemen, the fact that defendant permitted Swift Newberry, Jake Looper and Hiram Powell to hang around his place of business shows that he was keeping liquor for sale;" and "Gentlemen, we did not object to them showing that railroad men played dominoes at defendant's place of business, but when we went to prove that Swift Newberry, Jake Looper and Austin Bass, and a gang of that kind of fellows, who drink booze, played there, then the attorney for defendant objected; I tell you, gentlemen of the jury, when we show you that a crowd of booze drinkers hang around there it shows the character of the place, and the business the defendant is carrying on." Special charges were presented requesting the court to instruct the jury to ignore and not consider this argument of the county attorney, which charges were refused by the court. It may be a matter within the knowledge of the county attorney that Jake Looper, Austin Bass, Hiram Powell and the others named may be a crowd of booze drinkers, and their reputation is such that it is a known fact they "hang around" places only where liquor is dispensed, but there is no evidence of that fact in this record, and the remarks were outside of the record and improper, and the special charges requested should have been given.
The State's testimony shows that one night the county attorney went in appellant's place of business and found two men each drinking a bottle of beer; one of these men testifies that he brought the beer from Fort Worth. On the same night there was found in appellant's place of business a case of beer. Appellant testified that this beer belonged to his son and was kept there for his individual use, and that he had never made a sale of liquors to anyone. No liquors were shown to have been in appellant's place of business on any other *664 than this occasion, and a sale to no one is shown. In this state of the record appellant requested the court to instruct the jury:
"Gentlemen of the jury: If defendant kept any quantity of beer at his place of business, for his own use, or if he permitted his stepson to keep beer at said place of business, for his own use, such fact would not be a violation of the law. And if you believe that the liquors testified about was kept for the use of the owner, or owners, then you should acquit defendant, unless you believe from the evidence beyond a reasonable doubt that liquors were kept by defendant on said premises for the purpose of sale. And if you have a reasonable doubt as to whether such liquors were kept for sale or not you should acquit defendant and say by your verdict not guilty."
This charge should have been given. It may be the court did not believe the testimony of appellant, and it may be that the jury would have found it to be untrue, yet under the law in this State a person charged with crime has a right to have his defensive theory submitted to the jury. It is no offense for one to keep liquors for his own use, and if appellant's testimony is true, that is the only purpose for which the liquor found was kept.
The other matters complained of in the motion we do not deem necessary to discuss, but on account of the errors above pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
