Day v. State

Court of Appeals of Texas

Day v. State

17 S.W. 262, 21 Tex. Ct. App. 213, 1886 Tex. Crim. App. LEXIS 121

CourtCourt of Appeals of Texas

DecidedApril 17, 1886

DocketNo. 3926

StatusPublished

Cited by4 cases

This text of 17 S.W. 262 (Day v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Day v. State, 17 S.W. 262, 21 Tex. Ct. App. 213, 1886 Tex. Crim. App. LEXIS 121 (Tex. Ct. App. 1886).

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Opinion

Hurt, Judge.

The information alleges, inter alias, that appellant “ did unlawfully, on Sunday, sell to certain persons to affiant unknown, certain drinks of whisky, said Day being then and there a liquor dealer.” Appellant moved to quash upon the ground that the information does not allege that defendant was a trader in a lawful business at the time of the commission of the offense, nor does it allege that he was, at the time of said sale, “ a retail liquor dealer. ” This motion was by the court overruled, and we have presented the question,—was the information sufficient?

Article 186 of the Penal Code provides that if any “ dealer in merchandise” shall barter or sell on Sunday, he shall be fined not less than twenty nor more than fifty dollars. The information charges that appellant was, when he sold the whisky, a liquor dealer. Is this an allegation that defendant was a dealer in merchandise? That liquor is an article of merchandise there can be no doubt. The .objection to the information is not well taken.

Defendant moved the court to strike out the complaint because not filed in the county court. This was refused and the complaint ordered filed, which was done. In this there was no error.

Appellant insists that the court should have submitted to the jury the special charges requested by him, to-wit: that the burden was upon the State to prove the offense as alleged. The court had charged that “defendant is presumed to be innocent until his guilt is established by legal evidence; and. in case of a [215]*215reasonable doubt as to his guilt, he is entitled to be acquitted.” This we think sufficient.

Opinion delivered April 17, 1886.

Appellant objects to the charge of the court as a whole. We find no radical error, and as there were no exceptions taken to the charge at the time, no bill of exceptions reserved, we will not seek for defects, this being a misdemeanor case.

The judgment is affirmed.

Affirmed.

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Hurt, Judge.

The information alleges, inter alias, that appellant “ did unlawfully, on Sunday, sell to certain persons to affiant unknown, certain drinks of whisky, said Day being then and there a liquor dealer.” Appellant moved to quash upon the ground that the information does not allege that defendant was a trader in a lawful business at the time of the commission of the offense, nor does it allege that he was, at the time of said sale, “ a retail liquor dealer. ” This motion was by the court overruled, and we have presented the question,—was the information sufficient?

Article 186 of the Penal Code provides that if any “ dealer in merchandise” shall barter or sell on Sunday, he shall be fined not less than twenty nor more than fifty dollars. The information charges that appellant was, when he sold the whisky, a liquor dealer. Is this an allegation that defendant was a dealer in merchandise? That liquor is an article of merchandise there can be no doubt. The .objection to the information is not well taken.

Defendant moved the court to strike out the complaint because not filed in the county court. This was refused and the complaint ordered filed, which was done. In this there was no error.

Appellant insists that the court should have submitted to the jury the special charges requested by him, to-wit: that the burden was upon the State to prove the offense as alleged. The court had charged that “defendant is presumed to be innocent until his guilt is established by legal evidence; and. in case of a [215]*215reasonable doubt as to his guilt, he is entitled to be acquitted.” This we think sufficient.

Opinion delivered April 17, 1886.

Appellant objects to the charge of the court as a whole. We find no radical error, and as there were no exceptions taken to the charge at the time, no bill of exceptions reserved, we will not seek for defects, this being a misdemeanor case.

The judgment is affirmed.

Affirmed.

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17 S.W. 262, 21 Tex. Ct. App. 213, 1886 Tex. Crim. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-state-texapp-1886.

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