Hays v. State

279 S.W. 469

Opinions

BERRY, J.

The appellant was convicted in the district court of Kaufman county for the offense of selling intoxicating liquor, ánd his punishment assessed at confinement in the penitentiary for a term of one year.

The case was submitted to the jury on the third count in the indictment, which follows the language of the statute, and charges that the sale was made to Ernest Bruce and J. I. Barton.

The appellant very earnestly contends that the- court erred in submitting the case on the third count in the indictment, for the reason that the evidence is entirely insufficient to support the verdict on such count charging a joint sale to Ernest Bruce and J. I. Barton. It is appellant’s contention that the evidence wholly fails to show that any sale was made to these parties jointly, but that, if any sale was made, it was made to Barton alone. The facts, as disclosed by the record, are enlightening on the proposition urged by the appellant, and hence we quote the following from Barton’s testimony:

“I remember .the occasion of the Cedarvale picnic in Kaufman county in July. I went to that picnic with Ernest Bruce. * * * I did not see Jim Hays all that day. I, came back here on Friday after the picnic. It was on Friday morning after I had seen Winebarger at the picnic. From the picnic we went out on the highway and started home. We did not stop anywhere only when the ‘law’ arrested us. We bought some whisky that morning about 9 o’clock. We bought it from Jim Hays. We drove up there, and got out, and went around the house, and told Jim Hays we wanted some whisky. In a little while Mr. Winebarger walked up. " Mr. Hays asked us how much we wanted, and I told him a half gallon, ánd he went and got a sack and brought it down there. The whisky was in a fruit jar in a tow sack. We paid him by check on the First State Bank of Wills Point with his name on the check. It was made payable to Mr. Hays. He said' make it payable to cash. We tore that one up and made one payable to cash. Ernest Bruce wrote the cheek and I signed it. It was for $6, made payable to cash. I gave the check to Jim Hays.”

Ernest Bruce, the other alleged joint purchaser, testified, among other things, to the following:

“I know J. I. Barton. I remember of coming to a picnic at Cedarvale in Kaufman county, Tex., with him. We bought some whisky .on that trip. We bought it from Mr. Hays. We found him at Mr. Winebarger’s. When we went over there we talked to this fellow Hays. We told him we wanted some whisky, and he went and got some. We got a half gallon. We paid Mr. Hays for the whisky. We first wrote a check payable to Mr. Hays, then wrote one payable to cash. I wrote that check. Mr. Barton signed the check. This man here took the check. I drank some of that whisky that we got. It made me drunk. The officers caught us with some of it. We were drunk when they caught us.”

To bold that this testimony does not cogently raise the issue of a joint sale to both Bruce and Barton would be to trifle with the plain import and meaning of language. The evidence in our opinion not only raises the issue of a joint sale, but from the state’s s’tandpoint a joint sale is undisputedly shovyn.

Appellant complains in his exceptions to the court’s charge to the effect that the defendant was entitled to an affirmative charge that the sale must have been a joint one and not in general terms as submitted, and also that they could not convict if said sale was made to Barton alone or Bruce alone. His complaint in this regard is without merit. The court expressly told the jury that before they 'could convict the defendant they must believe from the evidence beyond a reasonable doubt that the liquor was sold to Barton and to Bruce. In addition to this, the court correctly charged on the burden of proof, the presumption of innocence, and a reasonable doubt. We think these charges fully protect appellant's rights in the matter.

Appellant complains that the testimony is insufficient to show the amount of the check which was made payable to cash, and also to the effect that there was no evidence as to whether or not the prosecuting witness, Barton, had an account upon the bank on which it was drawn or ever had an account, and, further, that the evidence shows that the check was not cashed. These complaints are, in our opinion, without merit. When the liquor was delivered in consideration for the check, the sale was consummated, and, if the cheek was not collectible at the bank on which it was drawn, this would not constitute a defense to the sale of the liquor. As to the amount of the check, we think it sufficiently shown by the testimony of Barton.' His testimony indicates to our minds that the check was drawn for the sum of $6, and, if appellant was not satisfied as to the amount of the check, he had the opportunity to show by cross-examination of Barton that it was not given for any amount. He failed to avail himself of the, privilege of cross-examination as to this matter, and we believe that, in this state of the record, the evidence is entirely sufficient to warrant the jury in concluding that the check was drawn for the sum of $6.

Binding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.