Morris v. State

Court of Criminal Appeals of Texas

Morris v. State

245 S.W. 915, 93 Tex. Crim. 99, 1922 Tex. Crim. App. LEXIS 651

CourtCourt of Criminal Appeals of Texas

DecidedDecember 13, 1922

DocketNo. 6903.

StatusPublished

Cited by10 cases

This text of 245 S.W. 915 (Morris 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

Morris v. State, 245 S.W. 915, 93 Tex. Crim. 99, 1922 Tex. Crim. App. LEXIS 651 (Tex. 1922).

Pincite

Opinion

MORROW, Presiding Judge.

The conviction is for violation of the intoxicating liquor law; punishment fixed at confinement in the penitentiary for a period of three years.

The count in the indictment upon which the conviction rests contains this language:

“. . . did then and there keep and was interested in keeping a building, room and place used for the purpose of selling spiritous, vinous and intoxicating liquors and malt liquor and medicated bitters, capable of producing intoxication.”

The indictment is attacked upon the ground that it fails to charge that the building was “knowingly” kept for the purposes named in the indictment. The statute Sedares the acts described in the indictment unlawful, and concludes thus:

“. . . and any one who knowingly does so shall be guilty of violating this Act and shall be punished accordingly, etc.” (See Complete Texas Stat., 1920, P. C., Art. 588%oo, p. 83.)

The criticism of the indictment appears to be well founded. Where the act charged in the offense does not necessarily imply a guilty knowledge, and' where .such knowledge is the substantive ingredient of the offense, it is necessary that the indictment contain an averment that the act was “knowingly” done. Wharton’s Crim. Proc., 10th *101 ' Ed., Sec. 210. Particularly is this true where the statute denouncing the offense expressly requires that the act be “knowingly done.” The following cases bear upon the question: State v. Stalls, 37 Texas Reports, 440; Simon v. State, 31 Texas Crim. Rep. 187; Fox v. State, 3 Texas Crim. App., 329; Tynes v. State, 17 Texas Crim. App., 126; Barthelow v. State, 26 Texas, 175; Castle v. State, 23 Texas Crim App., 287. It is conceived that the nature of the act denounced as criminal by the statute in question is not one from which guilty knowledge may be necessarily implied. Moreover, the statute upon which the prosecution rests declares in terms that the act to be criminal must be knowingly done. (See Art. 588%oo, supra.)

In March, 1921, appellant leased the premises for a year. He was granted permision to assign his lease. This, according to the testimony introduced, was done on October 20, 1921. Holt, his assignee, testified that he had purchased the cold-drink business which appellant had conducted in the building in question. On October 26, 1921, sales of intoxicating liquors were made by persons on the premises, and seven pints of whisky were found there. Appellant on that date was not shown to have been present. Holt also testified that appellant had no interest in the business except that he was to receive part of the money taken in by Holt in the conduct of the business sold to be applied on the unpaid part of the purchase price. He was not present when the sales were made, and there is an absence of direct proof shown as to when or how the seven pints of whisky came upon the premises. The direct evidence, if believed supports the theory of appellant that he had dispossessed himself of the premises before the offense was cimmitted. To overcome this testimony, the State relies upon the inferences deducible from the facts proved, but not upon direct evidence connecting appellant with the commission of the crime. The situation did not warrant the court in refusing appellant’s request for an instruction on the law of circumstantial evidence. Miller v. State, 88 Texas Crim. Rep., 77, 225 S. W. Rep., 380, and cases listed therein.

The errors pointed out require a reversal of the judgment. It is so ordered.

Reversed and remanded.

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MORROW, Presiding Judge.

The conviction is for violation of the intoxicating liquor law; punishment fixed at confinement in the penitentiary for a period of three years.

The count in the indictment upon which the conviction rests contains this language:

“. . . did then and there keep and was interested in keeping a building, room and place used for the purpose of selling spiritous, vinous and intoxicating liquors and malt liquor and medicated bitters, capable of producing intoxication.”

The indictment is attacked upon the ground that it fails to charge that the building was “knowingly” kept for the purposes named in the indictment. The statute Sedares the acts described in the indictment unlawful, and concludes thus:

“. . . and any one who knowingly does so shall be guilty of violating this Act and shall be punished accordingly, etc.” (See Complete Texas Stat., 1920, P. C., Art. 588%oo, p. 83.)

The criticism of the indictment appears to be well founded. Where the act charged in the offense does not necessarily imply a guilty knowledge, and' where .such knowledge is the substantive ingredient of the offense, it is necessary that the indictment contain an averment that the act was “knowingly” done. Wharton’s Crim. Proc., 10th *101 ' Ed., Sec. 210. Particularly is this true where the statute denouncing the offense expressly requires that the act be “knowingly done.” The following cases bear upon the question: State v. Stalls, 37 Texas Reports, 440; Simon v. State, 31 Texas Crim. Rep. 187; Fox v. State, 3 Texas Crim. App., 329; Tynes v. State, 17 Texas Crim. App., 126; Barthelow v. State, 26 Texas, 175; Castle v. State, 23 Texas Crim App., 287. It is conceived that the nature of the act denounced as criminal by the statute in question is not one from which guilty knowledge may be necessarily implied. Moreover, the statute upon which the prosecution rests declares in terms that the act to be criminal must be knowingly done. (See Art. 588%oo, supra.)

In March, 1921, appellant leased the premises for a year. He was granted permision to assign his lease. This, according to the testimony introduced, was done on October 20, 1921. Holt, his assignee, testified that he had purchased the cold-drink business which appellant had conducted in the building in question. On October 26, 1921, sales of intoxicating liquors were made by persons on the premises, and seven pints of whisky were found there. Appellant on that date was not shown to have been present. Holt also testified that appellant had no interest in the business except that he was to receive part of the money taken in by Holt in the conduct of the business sold to be applied on the unpaid part of the purchase price. He was not present when the sales were made, and there is an absence of direct proof shown as to when or how the seven pints of whisky came upon the premises. The direct evidence, if believed supports the theory of appellant that he had dispossessed himself of the premises before the offense was cimmitted. To overcome this testimony, the State relies upon the inferences deducible from the facts proved, but not upon direct evidence connecting appellant with the commission of the crime. The situation did not warrant the court in refusing appellant’s request for an instruction on the law of circumstantial evidence. Miller v. State, 88 Texas Crim. Rep., 77, 225 S. W. Rep., 380, and cases listed therein.

The errors pointed out require a reversal of the judgment. It is so ordered.

Reversed and remanded.

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245 S.W. 915, 93 Tex. Crim. 99, 1922 Tex. Crim. App. LEXIS 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-state-texcrimapp-1922.

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