Whittlesey v. State

163 S.W. 78, 72 Tex. Crim. 614, 1914 Tex. Crim. App. LEXIS 55

• Court: Court of Criminal Appeals of Texas
• Decided: January 14, 1914
• Docket: No. 2935.
• Status: Published

Opinions

HARPER, Judge.

Appellant was convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at imprisonment in the county jail twenty days and a fine of $25.

The only assignment in the motion raises the issue of insufficiency of the testimony. The evidence would show that appellant and another white man attended a negro dance at night. Sidney Green testified: “I was at a negro frolic at Dock Redds about the 15th of last February. I saw,-the defendant, Travis Whittlesey, there with Mr. Calud Toole that night. I saw the defendant by the side of the road by an old crib where I bought some whisky from him. I first saw him standing in the yard in the light and he asked me if I wanted some whisky and I told him I did. I went down to the old crib near the house and he sold 'me a pint for a dollar.” Arthur Patton, the person to whom the sale is alleged to have been made, testified that about ten o’clock at night he went down the road and some one hailed him and asked him if he did not want something. That he did not recognize who it was; that he had his hat pulled down over his face. He asked the person who hailed him how much it was worth and he replied seventy-five cents. That he paid him seventy-five cents and got a pint of whisky. That he was standing against the old crib near the house, it being the same place where Sidney Green said he purchased whisky from appellant. Patton could not and did not identify appellant as the person who sold him the whisky.

The court submitted the case to the jury, charging them that it was a case of circumstantial evidence; after instructing them they could not convict appellant for a sale made to any person other than to Arthur Patton, he instructed them:

“In determining whether or not' a sale of intoxicating liquor was made to Arthur Patton at the time and place alleged, and in determining whether or not the defendant made said sale, if any, you will look to all the facts and circumstances in evidence before you, and in this connection you are charged that in order to warrant a conviction of crime on circumstantial evidence, each fact, necessary to the conclusion sought to be established, must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and the main fact sought to be proved; and the circumstances taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person committeed the offense charged.

“But in such cases it is not sufficient that the circumstances coincide with, account for and therefore render probable, the guilt of the accused; They must exclude, to a moral certainty, every other reasonable hypothesis, except the defendant’s guilt, and unless they do so, beyond a reasonable doubt, you will find the defendant not guilty.”

This placed the case before the jury in as favorable light as appellant has a right to expect, and the jury find the circumstances sufficiently cogent to justify a conviction. Sidney Green recognized appellant and bought a pint of whisky from him at the crib. Patton bought a pint from a person at the crib whom he did not recognize, about the same time. Ho other person is shown by the record to have been near the crib that night, and under such circumstances we will not disturb their verdict.

The judgment is affirmed.

Affirmed.