Huskey v. State

255 S.W.2d 204, 158 Tex. Crim. 272, 1952 Tex. Crim. App. LEXIS 1403

Opinions

MORRISON, Judge.

The offense is the sale of whiskey in a dry area, with prior convictions alleged to enhance the punishment; the punishment, a fine of $4,000.00.

The sole question presented is the sufficiency of the evidence to support the conviction.

Agent Giles of the Texas Liquor Control Board testified that he went to the Highway 80 Club, entered the same through the rear door, and was greeted by an unidentified man in a loud colored short sleeved sport shirt, who inquired what he wanted. Giles testified that the stranger, upon being told the brand of whiskey desired, turned toward a door and said, “Earl, get a pint of Pepper”; that there was a slot in the door to his right at waist height; that through this slot the arm of a man wearing a white shirt handed out a pint of James E. Pepper whiskey; and that he paid through the slot the purchase price. Giles further testified that after completing the purchase he made his identity known to the man in the short sleeved sport shirt; that a woman standing nearby hollered, “Liquor Board”; that the man in the sport shirt pressed a buzzer on the wall; and he heard a crash in a room to his right. Giles further stated that he went to the door, called to his fellow officers, and returned to the scene of the purchase. The witness stated that he entered a large room through the door, at which the woman had been standing, and as he did so he observed appellant walking toward a table and noted that he was wearing a white shirt. It seems to be conceded that immediately behind appellant at the moment he was discovered by this witness were two doors, one leading into the garage and the other leading into the room from which the whiskey had been sold. The witness testified that he did not know through which door the appellant had come, but noticed that the door leading into the room from which the whiskey had come was partially ajar. The witness Giles testified that only three people “were there,” the appellant, the woman, and the man in the sport shirt.

The witness Mauldin testified that following the raid they carried appellant to the police station and that “Mrs. Huskey” followed in her car.

The evidence is silent as to appellant’s connection with Highway 80 Club.

The prior convictions were proven.

The jury were charged on the law of circumstantial evidence.

In Hawkins v. State, 126 Tex. Cr. R. 111, 69 S. W. 1113, we said:

“In all cases before this court it is our duty to decide as far as the facts are concerned, not what we might have done had we been on the jury in a particular instance, but is there any testimony in the case at bar upon which a fair and dispassionate mind might find support for a verdict of guilty.”

On rehearing, we observed:

“There is no evidence of probative force pointing to any other person than appellant as the seller of the liquor.”

Finding the evidence sufficient, the judgment of the trial court is affirmed.