Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days confinement in the county jail.
Appellant reserved a number of exceptions to the introduction of the orders of the commissioners court declaring the result and putting local option into effect in said county. But said orders seem to be in proper form and in accordance with the law on the subject. The fact that the order authorizing the publication in some newspaper did not specify any particular newspaper did not invalidate the order. The law authorizes the county judge to designate a newspaper. Presumably the Clarksville News was designated by the judge, as the proceedings show that the publication was made in said newspaper, and subsequently embodied in the records of the commissioners' court. Nor does it matter that the order did not show that the court opened the polls and counted the votes; it does sufficiently show that the commissioners counted and tabulated the votes. Of course they must have opened the polls, in order to have counted and tabulated the votes. The judge explains that the entry to the effect that the foregoing order was published in the Clarksville News for four consecutive weeks, under date of June 16, 1902, when it could not have occurred at said date, was error; that the publication was finished in July, when local option went into effect.
The court did not err in receiving in evidence the memorandums kept by the telephone company, at Detroit, Texas, of calls made by defendant to talk with L.C. Clark at Paris. The bill does not show what these telephone memorandums were. Nor does the objection stated to the introduction of the same constitute a certificate on the part of the trial judge that the facts on which the objections were predicated existed. The bill is not sufficient in these respects. Yet, as explained by the judge, the evidence was admissible. The proof showed that these phone calls were placed with said company by defendant for L.C. Clark at Paris, and were made at the time the calls were placed with said company and were paid for by defendant. So the connection of defendant with said telephone messages was sufficiently shown to authorize their introduction.
Nor did the court err in refusing to receive certain testimony offered by appellant through John Dodd, to the effect that it was the custom of the people, or part of those who resided in Red River County, to phone orders for whisky to Paris; that such orders were often phoned by one person for a number of others; that the orders sent were filled and the goods sent to the parties as directed by the phone message. We fail to see, from the bill, how such testimony could have any bearing upon this case. What was customary by others, it does not occur to us would serve to solve any issue here presented. Besides the parties, appellant and Clerk were not shown to have any knowledge of any such custom. They appeared to have acted on business principles of their own;
and in our opinion, it did not require any custom in order to indicate what was done or the relation of the parties to the alleged sale.
It is shown by bill of exceptions that after the jury had retired and had been out several hours, they came into court and propounded to the judge the following question: "Is it necessary under the law for one to solicit orders or use his influence in the sale of an article to become an agent?" To which the court responded in a charge: "It is not necessary for one to solicit orders for any article of merchandise to become the agent of any party selling the same. On the question of agency in this case it is one of fact, and you will be governed by the rules heretofore given in determining the fact." This was objected to because it erroneously informed the jury that the question of agency was one of fact, whereas it is one of law and fact. As we understand the charge of the court, he told the jury that the question of agency was one of fact to be determined by the jury under the rules given in the charge by the court, which evidently referred to the general charge which the jury already had. It was further objected that said instruction failed to inform the jury what constituted defendant the agent of Clark. If the court's charge on the subject of agency was correct the jury had this question already in the main charge, and it was only necessary for the court to respond to the question asked.
In motion for new trial appellant objected to the court's charge with reference to agency and the collation by the charge of the evidence concerning agency, and telling the jury if they believed this to be true they would regard appellant as the agent of L.C. Clark in the sale of said liquor. The charge complained of is as follows: "Where there is no evidence of a written appointment of an agent, the fact of such agency must be determined by what he does; also by the act of his principal in acting upon and recognizing his contract. In determining whether the defendant was the agent and acting for L.C. Clark in making the sale, as charged in the indictment, if any such sale was made, or was interested in such sale, either directly or indirectly, you will consider any and all testimony which shows or tends to show, if there be any such testimony, the business relation existing between the defendant and L.C. Clark, and all testimony as to the number of orders for intoxicating liquors accepted and sent by the defendant to L.C. Clark except the one in this case, if any has been shown." This charge was objected to, because it instructed the jury that defendant's agency might be shown by the acts of others than the parties to the contract involved in this case; and that it further instructed the jury to disregard acts connected with the sale in question in determining the issue as to whether appellant was the agent of L.C. Clark. As we understand, the testimony with reference to other sales was merely to illustrate appellant's method of doing business, to aid the jury to determine the question of agency, and whether or not as to the sale alleged in the
indictment appellant acted as the agent of said Clark and made the sale of said whisky in Red River County.
It is also complained that the charge of the court failed to instruct the jury that, in order to constitute a sale, either for cash or credit, that the goods must be delivered to the buyer. A critical examination of the charge in question bears out the contention that it is a charge on the weight of the testimony; and besides it excludes from the jury the factum probandum involved in this case. No matter what the other sales admitted in evidence tended to show with reference to the question of agency, the real issue in this case was whether or not in the particular sale for which appellant was indicted, he acted as the agent of Clark in making the sale in Red River County; and all the other sales were merely admitted in order to shed light on this transaction, yet the court appears to have excluded this transaction from the consideration of the jury in determining the question of agency. In this we think the court was in error.
The court was also in error in not furnishing the jury with a proper test in order to determine whether or not appellant acted as the agent of Clark in Red River County and actually made the sale there. As we understand the rule of law, as established by the decisions on this subject appellant must have acted as the agent of Clark in the sale of the liquor in Red River County; and it was also necessary, in accordance with the terms of the sale, that it should be consummated in Red River County.
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Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days confinement in the county jail.
Appellant reserved a number of exceptions to the introduction of the orders of the commissioners court declaring the result and putting local option into effect in said county. But said orders seem to be in proper form and in accordance with the law on the subject. The fact that the order authorizing the publication in some newspaper did not specify any particular newspaper did not invalidate the order. The law authorizes the county judge to designate a newspaper. Presumably the Clarksville News was designated by the judge, as the proceedings show that the publication was made in said newspaper, and subsequently embodied in the records of the commissioners' court. Nor does it matter that the order did not show that the court opened the polls and counted the votes; it does sufficiently show that the commissioners counted and tabulated the votes. Of course they must have opened the polls, in order to have counted and tabulated the votes. The judge explains that the entry to the effect that the foregoing order was published in the Clarksville News for four consecutive weeks, under date of June 16, 1902, when it could not have occurred at said date, was error; that the publication was finished in July, when local option went into effect.
The court did not err in receiving in evidence the memorandums kept by the telephone company, at Detroit, Texas, of calls made by defendant to talk with L.C. Clark at Paris. The bill does not show what these telephone memorandums were. Nor does the objection stated to the introduction of the same constitute a certificate on the part of the trial judge that the facts on which the objections were predicated existed. The bill is not sufficient in these respects. Yet, as explained by the judge, the evidence was admissible. The proof showed that these phone calls were placed with said company by defendant for L.C. Clark at Paris, and were made at the time the calls were placed with said company and were paid for by defendant. So the connection of defendant with said telephone messages was sufficiently shown to authorize their introduction.
Nor did the court err in refusing to receive certain testimony offered by appellant through John Dodd, to the effect that it was the custom of the people, or part of those who resided in Red River County, to phone orders for whisky to Paris; that such orders were often phoned by one person for a number of others; that the orders sent were filled and the goods sent to the parties as directed by the phone message. We fail to see, from the bill, how such testimony could have any bearing upon this case. What was customary by others, it does not occur to us would serve to solve any issue here presented. Besides the parties, appellant and Clerk were not shown to have any knowledge of any such custom. They appeared to have acted on business principles of their own;
and in our opinion, it did not require any custom in order to indicate what was done or the relation of the parties to the alleged sale.
It is shown by bill of exceptions that after the jury had retired and had been out several hours, they came into court and propounded to the judge the following question: "Is it necessary under the law for one to solicit orders or use his influence in the sale of an article to become an agent?" To which the court responded in a charge: "It is not necessary for one to solicit orders for any article of merchandise to become the agent of any party selling the same. On the question of agency in this case it is one of fact, and you will be governed by the rules heretofore given in determining the fact." This was objected to because it erroneously informed the jury that the question of agency was one of fact, whereas it is one of law and fact. As we understand the charge of the court, he told the jury that the question of agency was one of fact to be determined by the jury under the rules given in the charge by the court, which evidently referred to the general charge which the jury already had. It was further objected that said instruction failed to inform the jury what constituted defendant the agent of Clark. If the court's charge on the subject of agency was correct the jury had this question already in the main charge, and it was only necessary for the court to respond to the question asked.
In motion for new trial appellant objected to the court's charge with reference to agency and the collation by the charge of the evidence concerning agency, and telling the jury if they believed this to be true they would regard appellant as the agent of L.C. Clark in the sale of said liquor. The charge complained of is as follows: "Where there is no evidence of a written appointment of an agent, the fact of such agency must be determined by what he does; also by the act of his principal in acting upon and recognizing his contract. In determining whether the defendant was the agent and acting for L.C. Clark in making the sale, as charged in the indictment, if any such sale was made, or was interested in such sale, either directly or indirectly, you will consider any and all testimony which shows or tends to show, if there be any such testimony, the business relation existing between the defendant and L.C. Clark, and all testimony as to the number of orders for intoxicating liquors accepted and sent by the defendant to L.C. Clark except the one in this case, if any has been shown." This charge was objected to, because it instructed the jury that defendant's agency might be shown by the acts of others than the parties to the contract involved in this case; and that it further instructed the jury to disregard acts connected with the sale in question in determining the issue as to whether appellant was the agent of L.C. Clark. As we understand, the testimony with reference to other sales was merely to illustrate appellant's method of doing business, to aid the jury to determine the question of agency, and whether or not as to the sale alleged in the
indictment appellant acted as the agent of said Clark and made the sale of said whisky in Red River County.
It is also complained that the charge of the court failed to instruct the jury that, in order to constitute a sale, either for cash or credit, that the goods must be delivered to the buyer. A critical examination of the charge in question bears out the contention that it is a charge on the weight of the testimony; and besides it excludes from the jury the factum probandum involved in this case. No matter what the other sales admitted in evidence tended to show with reference to the question of agency, the real issue in this case was whether or not in the particular sale for which appellant was indicted, he acted as the agent of Clark in making the sale in Red River County; and all the other sales were merely admitted in order to shed light on this transaction, yet the court appears to have excluded this transaction from the consideration of the jury in determining the question of agency. In this we think the court was in error.
The court was also in error in not furnishing the jury with a proper test in order to determine whether or not appellant acted as the agent of Clark in Red River County and actually made the sale there. As we understand the rule of law, as established by the decisions on this subject appellant must have acted as the agent of Clark in the sale of the liquor in Red River County; and it was also necessary, in accordance with the terms of the sale, that it should be consummated in Red River County. The court, as we understand the charge in paragraph 5 thereof, instructed the jury, in effect, that, if appellant acted as the agent for Clark and made the sale of the intoxicating liquors in Red River County, that is, if he took or accepted an order therein for intoxicating liquors, and the goods, in pursuance of said order, were shipped and received by the purchaser within the county in which the local option law was in force, then appellant would be guilty. This is undoubtedly in accord with the act of the Twenty-seventh Legislature, p. 262. In Davidson v. State, 73 S.W. Rep., 808, while the question was not decided, we expressed the opinion that the Legislature could not change the rules of law with reference to what it took to constitute a sale, or to fix the locus of such sales. In Bruce v. State, 36 Tex. Crim. 53, this court discussed what it required under the rules of law to constitute a sale; and it was there held, "that parties who are competent to trade can make their own contracts, stipulate as to terms, and can make such terms as are not illegal; that the locus of a sale, that is where it was consummated, is to be determined by the known rules of commercial law on the subject." The effect of that decision was to hold that the place of the sale was to be determined by actual delivery and parting by the seller with the property in the thing sold to the purchaser. Wherever this occurs there the sale is consummated. See Northcutt v. State, 35 Tex.Crim. Rep.; Bogel v. State, 55 S.W. Rep., 830; and see Specialty Furniture Co. v. Kingsbury, 60 S.W. Rep., 1030;
24 Am. and Eng. Enc. of Law, p. 1071. Tested by these rules, if appellant, as the agent of Clark, made a sale of the whisky in question to the prosecutor in Red River County, and the actual delivery of the same was to take place in Lamar County, and neither appellant nor Clark were to have anything further to do with the goods, then we fail to see how appellant could be convicted of a consummated sale of the goods in Red River County. Appellant might never bring them into Red River County. In such case there would be no violation of the law. The purchaser might himself, or through his own agents, bring said goods into Red River County. In such case there would be no violation of the law, because there was never a consummated sale of the goods in question in Red River County. The charge of the court ignored this principle, and simply instructed the jury, as the recent act on the subject provides, if defendant made a sale of the goods as agent of Clark in Red River County, he would be guilty, regardless of the place of delivery and regardless of the consummation of the sale in that county. As we understand the Constitution on this subject, the Legislature was authorized to permit localities, by a majority vote, to determine from time to time whether the sale of intoxicating liquors should be prohibited within prescribed limits. The sale evidently here refers to sales of liquors within the prohibited territory. The evil which the Constitution sought to provide against was the passing of title within local option territory of intoxicating liquors; and this, it seems to us, involves a delivery of the goods within such territory. We are not holding here that the evidence is not ample to have authorized the conviction of appellant for selling and delivering said liquor within the prohibited territory. The evidence shows that he received the money, sent all the phone messages, and the expressage on the liquors was paid by his principal into the prohibited territory. In other words, the evidence here amply shows that he carried on the business of selling liquors within the prohibited territory as the agent of Clark. However, he denies this. As we understand the charge of the court, his denial was ignored; and the court gave the jury an improper measure in order to determine the locus in quo of the sale. For this error the judgment is reversed and the cause remanded.
Reversed and remanded.
Brooks, Judge, dissents.
ON REHEARING.