Huggins v. State

210 S.W. 804, 85 Tex. Crim. 205, 1919 Tex. Crim. App. LEXIS 549

• Court: Court of Criminal Appeals of Texas
• Decided: April 16, 1919
• Docket: No. 5195.
• Status: Published

Opinions

MORROW, Judge.

This conviction is for a violation of the statute which provides that it shall be unlawful for any person, directly or indirectly, to purchase for, procure for, sell, give or deliver to any person enlisted in the military forces of the United States, any spirituous liquors capable of producing intoxication. (See Acts 35th Leg., 4th Called Session, 'Chap. 12).

Counsel for appellant upon the trial reserved no exceptions to the charge of the court, nor proper exceptions to special charges refused. The only special charge requested, the refusal of which is not properly reserved, was incorrect in that it directed an acquittal if the defendant bought the .whisky for himself. He would, under the statute, have been guilty if he bought the whisky for himself and sold or delivered it to the soldier.

Other counsel appealing the case urge the insufficiency of the evidence, based upon the proposition that Pope, the soldier to whom the whisky was charged to have been delivered, and two officers co-operating with him, were accomplices, in that they brought about the commission of the crime, and that under the rule stated in Bush v. State, 68 Texas Crim. Rep., 299, their testimony should be weighed by the rule applicable to accomplice testimony. In Mansfield v. State, 206 S. W. Rep., 195, we intimated in this character of prosecution the rule touching accomplice testimony would be the same as in prosecutions for violation of the local option prohibition law. The decision of that question was not necessary for a determination of the case, and inasmuch as Article 602 P. C., provides a special rule in local option eases, it is doubtless correct as held in Bush v. State, supra, that in a prosecution of the character here involved the general rule with reference to accomplice testimony would prevail. Applying that rule, however, and assuming that there was evidence upon which the jury might have concluded that Pope, Porter and Pomeroy were accomplices, it was incumbent upon the ap pell ant to have requested the submission of that issue to the jury, or to at least have excepted to the failure of the court to do so in his charge. An omission of this character is not fundamental error, nor one that can be raised in motion for a new trial, or on appeal, in the absence of an exception to the charge as provided by the Act of the Thirty-Third Legislature, Chapter 138. Moreover, there was evidence other than that to which the complaint is addressed tending to connect the appellant with the commission of the offense. The witness Gaten testified to a part of the transaction, corroborating the witness Pope and the other witnesses mentioned, and the appellant himself claimed that after Pope had asked him to obtain some liquor he bought four half pints of whisky for his own use, and put it near the stand which was used for shining shoes for a barbershop in which' he worked; that Pope had previously placed in his possession three $1 bills, and that after he put the package containing the whisky in the place mentioned he saw Pope take it, and said to him, “that is my whisky,” when Pope said, “Get some more while getting is good; that the S3 would get it. ’ ’ That he had previously offered to return the $3 to Pope, stating “that is cheap whisky for myself,” when Pope said, “This will do,” and appellant said, “This wont do,” but further said, “I put the $3 back in my pocket.” The whisky introduced upon the trial and gotten from appellant by Pope was identified by appellant as the same whisky that he had bought and set down and saw Pope take, and said,' “I kept the $3 he gave me after he would not receive it back. ’ ’

The facts are not such as to authorize use to hold them insufficient to support the conviction, and there being no error in the trial presented for review, the judgment is affirmed.

Affirmed.