38 S.W. 776 | Tex. Crim. App. | 1897
Appellant was convicted of violating the local option law, filled $25, and given twenty days in the county jail; hence this appeal. The information in this case is the same as that in Key v. State, ante p. 77. Upon the authority of that case, this information is held to be sufficient. Over appellant's objection, the State introduced in evidence the order of the Commissioners' Court ordering an election to be held by the qualified voters of Hunt County, to determine whether or not the sale of intoxicating liquors should be prohibited in Hunt County. The objection urged was that there was "no allegation of such order in the information, and no pleading in the cause to authorize its introduction." These objections are not well taken. The allegation in the information was sufficient to authorize the admission of the testimony. The appellant objects to the court's charge, which authorized a conviction upon the State's case, because it did not require the jury to believe that there was not a prescription authorizing the sale. The proof in this case shows without contradiction that the *85 purchaser had no prescription, and gave defendant none. The prescription or purchase for sacramental purposes does not figure in this case, and had nothing to do with it. The testimony excluded the idea that the whiskey was bought on prescription or sold for sacramental purposes. Appellant requested the court to charge the jury, if they should believe from the evidence that the defendant, Willis, had no interest in the sale of the whiskey, but only aided or assisted 'Mr. Blackwell in the sale of the same, to acquit him. Under a proper state of case, this charge would embody the law. While the defendant testified that he had no interest in the sale, yet, when all the facts are considered bearing upon this point, no honest jury would take such a view of the case if this charge had been submitted to them, because the evidence of the defendant himself shows (he being the only witness who testified for defendant) that he was in the employ of the owner of the saloon; that the dollar was given to him by the purchaser to secure whiskey from his employer, and he handed this dollar to his co-employe, a negro, who procured the whiskey, and handed it to defendant, who then handed it to the purchaser, Blackwell; these facts would constitute him a principal in the sale, there being no such thing as an accomplice in misdemeanor cases. There was no error in refusing this charge. The testimony of Blackwell, the only witness for the State, is clear and emphatic that he bought the whiskey of the appellant, and paid him the dollar for it. There is another remarkable fact in this case: Appellant in one place states that he did not know what the money was for, and in another place he states that he knew that Blackwell wanted whiskey, and knew that the dollar was given him for the purpose of purchasing whiskey. It is remarkably strange that appellant should be so well informed of the wants of Blackwell, unless he had been engaged in that business on divers occasions before; and understood the device by which to defeat a sale, and thereby prevent a prosecution. If appellant had nothing to do with the sale of the whiskey, why did not he inquire of Blackwell what he wanted, and, when informed, direct him to the negro. He proposes to show that the negro made the sale, and not himself; but it seems that he would not trust the negro with the money. Taking the testimony altogether, as before stated, we have no doubt but that the negro was only a tool, and that appellant, aided by the negro, was engaged in selling whiskey. The judgment is affirmed.
Affirmed.
