Cogburn v. State

Court of Criminal Appeals of Texas

Cogburn v. State

189 S.W.2d 158, 189 S.W. 158, 80 Tex. Crim. 141, 1916 Tex. Crim. App. LEXIS 279

CourtCourt of Criminal Appeals of Texas

DecidedOctober 25, 1916

DocketNo. 4216.

StatusPublished

This text of 189 S.W.2d 158 (Cogburn v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cogburn v. State, 189 S.W.2d 158, 189 S.W. 158, 80 Tex. Crim. 141, 1916 Tex. Crim. App. LEXIS 279 (Tex. 1916).

Pincite

Opinion

HABPBB, Judge.

Appellant was convicted of selling intoxicating liquor in prohibition territory.

The only exception in the record is to one paragraph of the court’s charge. It reads: “In this connection you are instructed that if the defendant showed the bottle of whisky to John Tally before he paid the money over to Zack Woods then you are authorized to find that he was acting with the said Zack, Woods in the sale of the whisky to John Tally and would be a principal in the sale of the whisky, and if you so find and believe from the evidence, beyond a reasonable doubt, you will find the defendant guilty as charged,” etc. Appellant objected to the charge as being upon the weight to be given the testimony, and because it sets out facts constituting proof of sale which are erroneous in law. We do not think the charge correctly presents the law as ap *142 plieable to the evidence in this case. State’s witness admits that appellant told him he had no whisky for sale, hut thought he could get some for him; that appellant then went up the railroad and around a box car, and when appellant came back he set down a bottle and motioned him to go get it. Appellant testified, in substance, to the same facts, but says he acted for the accommodation of Tally; that Zack Woods was selling whisky there that day, and he had bought some from him for himself; that when Tally approached him he went around the car to Zack Woods, got a bottle of whisky from him, and carried it hack and set it down and motioned Tally; that he had no interest in the whisky, and gave all the money to Woods that he received from Tally. The issue of agency should have been properly submitted, and his guilt or innocence not he made to depend on whether he delivered the money to Woods before or just after he motioned to Tally to go and get the whisky.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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HABPBB, Judge.

Appellant was convicted of selling intoxicating liquor in prohibition territory.

The only exception in the record is to one paragraph of the court’s charge. It reads: “In this connection you are instructed that if the defendant showed the bottle of whisky to John Tally before he paid the money over to Zack Woods then you are authorized to find that he was acting with the said Zack, Woods in the sale of the whisky to John Tally and would be a principal in the sale of the whisky, and if you so find and believe from the evidence, beyond a reasonable doubt, you will find the defendant guilty as charged,” etc. Appellant objected to the charge as being upon the weight to be given the testimony, and because it sets out facts constituting proof of sale which are erroneous in law. We do not think the charge correctly presents the law as ap *142 plieable to the evidence in this case. State’s witness admits that appellant told him he had no whisky for sale, hut thought he could get some for him; that appellant then went up the railroad and around a box car, and when appellant came back he set down a bottle and motioned him to go get it. Appellant testified, in substance, to the same facts, but says he acted for the accommodation of Tally; that Zack Woods was selling whisky there that day, and he had bought some from him for himself; that when Tally approached him he went around the car to Zack Woods, got a bottle of whisky from him, and carried it hack and set it down and motioned Tally; that he had no interest in the whisky, and gave all the money to Woods that he received from Tally. The issue of agency should have been properly submitted, and his guilt or innocence not he made to depend on whether he delivered the money to Woods before or just after he motioned to Tally to go and get the whisky.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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Bluebook (online)

189 S.W.2d 158, 189 S.W. 158, 80 Tex. Crim. 141, 1916 Tex. Crim. App. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cogburn-v-state-texcrimapp-1916.