PRENDERGAST, Judge.
Appellant was convicted under the Act of 1909 (P. C. Art. 589), for unlawfully engaging in' and pursuing the occupation or business of selling intoxicating liquors in prohibition territory and his penalty fixed at the lowest term,—two years in the penitentiary.
Some nineteen separate and distinct sales of intoxicating liquors were alleged to have been made by appellant to respective persons named between the dates of March 10th to May 18, 1911.
Prohibition had been properly adopted and was in force in Hunt County, where this offense was alleged to have been committed, before 1911, and was in force when all these respective sales were alleged to have been made. It was also shown that- between the dates of January 5th and May 22,1911, appellant had shipped to and received, seventy quarts of intoxicating liquors (whisky). The shipments ranged from two t.o eight quarts at a time; and that between February 18th and May 22, 1911, he also had shipped to him by express and received, twenty-five kegs of beer. The shipments were one keg each day, received, except, on March 20th and 25th, on which days he received two kegs per day. It appears from the evidence that the sale of beer by appellant was made under the guise of lunches. He would go to parties during the times he received this beer, tell them they were going to have a spread that day and that they were going to have beer, and would ask if they wanted to come in on it; that if they did it would cost them fifty cents for lunch. That there were usually from twelve to fifteen persons who would go in on these spreads, each contributing, or usually contributing, fifty cents. He would then order the beer from Dallas, buy some articles for a lunch and when the beer arrived would take it to some out of the way, or secret place, and the parties' would then proceed to drink the beer and eat the lunches,—each person drinking beer, as it suited him, until it was all drank. On some occasions he would get these fifty cent payments before he would send for the beer, on others, after he had sent for it and when the beer was on hand. The evidence clearly justified the jury to believe that in most, if not all, of these instances, the lunches and the ordering of beer after the money had been made up and paid in, was a mere subterfuge to try to avoid the penalty of the law. It is true appellant claimed that he was doing all this without profit and merely acting as the agent for these respective parties in ordering, receiving and having them drink the beer and procuring and having them eat the lunches in connection therewith. He also claimed that the shipments of the seventy quarts of whisky, above shown, was not all for himself, but was ordered for others, they paying him the money in advance to get it for them, but all of this was for the jury. The evidence was amply sufficient to show many more than two sales of intoxicating liquors, if not all, of the eighteen
or nineteen alleged in the indictment, and the evidence was amply sufficient to show that the appellant was engaged in the business and pursuing the occupation of selling intoxicating liquors in Hunt County, where prohibition was in force under said act of the Legislature.
A large number of bills of exception were taken to the proceedings and to the admission and exclusion of evidence. It will be unnecessary to take up these matters separately. We will hereinafter discuss such of them as it is necessary to notice.
Appellant also asked some eight or ten special charges which were refused. The only way error is assigned on any of these is, “the court erred in refusing to give defendant’s special charge No.-,” filling the blank with the number of the charge. This is clearly insufficient to authorize this court to consider these charges, under the uniform decisions of this court. Berg v. State, 64 Texas Crim. Rep., 612; 142 S. W., 884; Ryan v. State, 64 Texas Crim. Rep., 628; 142 S. W. Rep., 878, and eases there cited. However, we have looked over the charges and in our opinion the court did not err in refusing to give them.
The Act of the Legislature under which this prosecution was had has been uniformly and many times held constitutional. See Fitch v. State, 58 Texas Crim. Rep., 366, and many eases since decided following this case. So that there was no error in the court overruling appellant’s motion to quash the indictment in this case on the ground that the said Act was unconstitutional.
The record shows'”that prohibition was properly adopted, declared, etc., in Hunt County before the Legislature made a single sale in violation thereof, a felony, and, while the violation of such law made it a misdemeanor only. The record further shows that about June, 1911, by proper complaint and information the appellant was charged in the County Court, in some eight cases, with having made separate and distinct sales of intoxicating liquors. Some, at least, of these prosecutions were based on the same sales alleged to have been made by appellant to some of the parties in the indictment in this case. That after these prosecutions were begun, appellant made a trade with the county attorney by which it was agreed that appellant would suffer conviction in three of those cases, and the county attorney would dismiss the other five and that no other prosecution whatever should be had against appellant. All these prosecutions were for misdemeanors and all in the County Court of Hunt County, Texas. That thereupon, appellant did permit conviction to be had against him in three of said eases, the lowest penalty in each being assessed, to-wit: twenty days in jail and a fine of $25, and the other five of those misdemeanor cases were dismissed in the County Court, and the appellant at the time of the trial in this case had suffered part, if not all, of the penalties inflicted in said misdemeanor cases. The court, without a jury, heard all the evidence on this issue and held
against appellant and struck out his plea of former conviction and jeopardy and his settlement of the matter with the county attorney. The county attorney and his assistant, and the county judge, and the district attorney, denied making any such trade and agreement with the appellant in the County Court cases. However, the appellant had some testimony which tended slightly to show that such an agreement may have been made and understood by the appellant. Appellant complains of the action of the court in striking out his said plea of former conviction, jeopardy, and agreement between him and said officers by which he was relieved of any further prosecution and in not submitting that question to the jury for its finding.
There was no error by the court in any of this matter. The offenses prosecuted in the County Court were separate and distinct from the offense with which the appellant was prosecuted and convicted in this case, and a conviction in any and in all of said County Court cases could not have been a bar to this conviction. This question has already been discussed and settled by this court in Robison v. State, 66 Texas Crim. Rep., 392; 147 S. W., 245, and cases there cited; Parshall v. State, 62 Texas Crim. Rep., 177; 138 S. W. Rep., 759. Besides, neither appellant’s plea alleges, nor does the proof in any way suggest, that the District Court or the judge thereof, in any way or at any time agreed that the said prosecutions for misdemeanors in the County Court cases, should be any bar to the felony charge in this case. The county attorneys and county judge, even if they.
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PRENDERGAST, Judge.
Appellant was convicted under the Act of 1909 (P. C. Art. 589), for unlawfully engaging in' and pursuing the occupation or business of selling intoxicating liquors in prohibition territory and his penalty fixed at the lowest term,—two years in the penitentiary.
Some nineteen separate and distinct sales of intoxicating liquors were alleged to have been made by appellant to respective persons named between the dates of March 10th to May 18, 1911.
Prohibition had been properly adopted and was in force in Hunt County, where this offense was alleged to have been committed, before 1911, and was in force when all these respective sales were alleged to have been made. It was also shown that- between the dates of January 5th and May 22,1911, appellant had shipped to and received, seventy quarts of intoxicating liquors (whisky). The shipments ranged from two t.o eight quarts at a time; and that between February 18th and May 22, 1911, he also had shipped to him by express and received, twenty-five kegs of beer. The shipments were one keg each day, received, except, on March 20th and 25th, on which days he received two kegs per day. It appears from the evidence that the sale of beer by appellant was made under the guise of lunches. He would go to parties during the times he received this beer, tell them they were going to have a spread that day and that they were going to have beer, and would ask if they wanted to come in on it; that if they did it would cost them fifty cents for lunch. That there were usually from twelve to fifteen persons who would go in on these spreads, each contributing, or usually contributing, fifty cents. He would then order the beer from Dallas, buy some articles for a lunch and when the beer arrived would take it to some out of the way, or secret place, and the parties' would then proceed to drink the beer and eat the lunches,—each person drinking beer, as it suited him, until it was all drank. On some occasions he would get these fifty cent payments before he would send for the beer, on others, after he had sent for it and when the beer was on hand. The evidence clearly justified the jury to believe that in most, if not all, of these instances, the lunches and the ordering of beer after the money had been made up and paid in, was a mere subterfuge to try to avoid the penalty of the law. It is true appellant claimed that he was doing all this without profit and merely acting as the agent for these respective parties in ordering, receiving and having them drink the beer and procuring and having them eat the lunches in connection therewith. He also claimed that the shipments of the seventy quarts of whisky, above shown, was not all for himself, but was ordered for others, they paying him the money in advance to get it for them, but all of this was for the jury. The evidence was amply sufficient to show many more than two sales of intoxicating liquors, if not all, of the eighteen
or nineteen alleged in the indictment, and the evidence was amply sufficient to show that the appellant was engaged in the business and pursuing the occupation of selling intoxicating liquors in Hunt County, where prohibition was in force under said act of the Legislature.
A large number of bills of exception were taken to the proceedings and to the admission and exclusion of evidence. It will be unnecessary to take up these matters separately. We will hereinafter discuss such of them as it is necessary to notice.
Appellant also asked some eight or ten special charges which were refused. The only way error is assigned on any of these is, “the court erred in refusing to give defendant’s special charge No.-,” filling the blank with the number of the charge. This is clearly insufficient to authorize this court to consider these charges, under the uniform decisions of this court. Berg v. State, 64 Texas Crim. Rep., 612; 142 S. W., 884; Ryan v. State, 64 Texas Crim. Rep., 628; 142 S. W. Rep., 878, and eases there cited. However, we have looked over the charges and in our opinion the court did not err in refusing to give them.
The Act of the Legislature under which this prosecution was had has been uniformly and many times held constitutional. See Fitch v. State, 58 Texas Crim. Rep., 366, and many eases since decided following this case. So that there was no error in the court overruling appellant’s motion to quash the indictment in this case on the ground that the said Act was unconstitutional.
The record shows'”that prohibition was properly adopted, declared, etc., in Hunt County before the Legislature made a single sale in violation thereof, a felony, and, while the violation of such law made it a misdemeanor only. The record further shows that about June, 1911, by proper complaint and information the appellant was charged in the County Court, in some eight cases, with having made separate and distinct sales of intoxicating liquors. Some, at least, of these prosecutions were based on the same sales alleged to have been made by appellant to some of the parties in the indictment in this case. That after these prosecutions were begun, appellant made a trade with the county attorney by which it was agreed that appellant would suffer conviction in three of those cases, and the county attorney would dismiss the other five and that no other prosecution whatever should be had against appellant. All these prosecutions were for misdemeanors and all in the County Court of Hunt County, Texas. That thereupon, appellant did permit conviction to be had against him in three of said eases, the lowest penalty in each being assessed, to-wit: twenty days in jail and a fine of $25, and the other five of those misdemeanor cases were dismissed in the County Court, and the appellant at the time of the trial in this case had suffered part, if not all, of the penalties inflicted in said misdemeanor cases. The court, without a jury, heard all the evidence on this issue and held
against appellant and struck out his plea of former conviction and jeopardy and his settlement of the matter with the county attorney. The county attorney and his assistant, and the county judge, and the district attorney, denied making any such trade and agreement with the appellant in the County Court cases. However, the appellant had some testimony which tended slightly to show that such an agreement may have been made and understood by the appellant. Appellant complains of the action of the court in striking out his said plea of former conviction, jeopardy, and agreement between him and said officers by which he was relieved of any further prosecution and in not submitting that question to the jury for its finding.
There was no error by the court in any of this matter. The offenses prosecuted in the County Court were separate and distinct from the offense with which the appellant was prosecuted and convicted in this case, and a conviction in any and in all of said County Court cases could not have been a bar to this conviction. This question has already been discussed and settled by this court in Robison v. State, 66 Texas Crim. Rep., 392; 147 S. W., 245, and cases there cited; Parshall v. State, 62 Texas Crim. Rep., 177; 138 S. W. Rep., 759. Besides, neither appellant’s plea alleges, nor does the proof in any way suggest, that the District Court or the judge thereof, in any way or at any time agreed that the said prosecutions for misdemeanors in the County Court cases, should be any bar to the felony charge in this case. The county attorneys and county judge, even if they. had attempted it, the district attorney agreeing or ratifying it, even if he did, without this approval of the District Judge, was not and could not be binding on the State. We do not intimate that any of the county officers or the district attorney made any such agreement with appellant as set up by him, nor that the suggestion thereof by the testimony on the hearing in this case would have authorized a finding that such was a fact. Johnson v. State, 66 Texas Crim. Rep., 586; 148 S. W., 300; C. C. P., Arts. 37 and 643; Fleming v. State, 28 Texas Crim. App., 234; Kelly v. State, 36 Texas Crim, Rep., 480; Diserin v. State, 59 Texas Crim. Rep., 149; 127 S. W., 1038.
The said plea of the appellant, being wholly insufficient and the offense in this case entirely different,—and a felony,—from those of the County Court,—which were misdemeanors,—the court did not err in not permitting appellant to show the course of conduct and what the county attorney did in other cases in no way connected with any of these cases against appellant; and neither did the court err in refusing to permit him to show that any of the various sales in this case were the same as those charged as single sales in the County Court.
Where a person is prosecuted under the statute under which appellant was prosecuted in this case, it is always permissible to prove other sales than those specifically alleged in the indictment for the purpose of showing that it was the business and occupation of the appel
lant to sell intoxicating liquors. Such has been the uniform holding of this court.
The books of the express company, having been properly proven up and identified and the entries shown to have been correctly made therein, and appellant’s receipt for each item thereof having been shown, were clearly admissible in evidence. Stephens v. State, 63 Texas Crim. Rep., 382; 139 S. W. Rep., 1141-6.
It is always permissible for the court, in his discretion, to permit leading questions to be asked to an unwilling witness, and questions asked in such way for the purpose of refreshing the recollection of the witness. The court did not err in permitting this in this case, as complained by appellant. Carter v. State, 59 Texas Crim. Rep., 73.
By another bill it was shown that after all the evidence and argument of the case had been concluded, the court took a recess to a stated time to prepare his charge and examine appellant’s special charges. When he returned to the court room it was about one hour later than the time stated for the adjournment for this purpose. When the Judge returned he found that some of the jury had become impatient at this delay. So when he went to read his charge to the jury he explained to them the reason of the delay, and in doing so he said to the jury, and explains the bill, as follows: “Gentlemen, it may seem that I have taken rather a long time to prepare this charge, but when it is taken into consideration that the court’s charges are prepared with the view of being criticized by lawyers, and sometimes passed on by the higher courts, and that the court has to examine the special charges, perhaps it is not so long as it may appear.”
“In making the above statement I had no intention whatever that the same should be applied by any one to the case at bar, and I am satisfied that the jury did not so construe it; in fact, I feel sure that no one could construe the remarks so as to justify them in concluding that they had the least bearing or influence whatever upon the jury in passing upon this case in their deliberations. In fact, if such remarks had had the least bearing upon the jury, or any one of them, there is no doubt in my mind that the defendant’s counsel would have proven such fact upon their motion for a new trial.” This bill presents no reversible error.
There was no reversible error shown by appellant’s first bill, wherein the district attorney, in examining the jurors before empanelment, stated to them that the law now makes it a felony with a punishment of not less than two years for a person to engage in, or pursue the occupation of selling intoxicating liquors in local option counties, and asked them if they believed that was a good and wholesome law and ought to be enforced, as any other law on the statute books, to which they answered, yes, sir. The objection being: “We object to whether it’s being a good and wholesome law as argumentative, tending to prejudge the facts in the case, and get the facts in advance.”
It is elementary that when objections are made to particular portions of a charge that the whole charge must be taken into consideration in determining whether such charge is erroneous or not. In the third paragraph of the charge, the court told the jury, in effect, that in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of the law, which had in the preceding section been quoted substantially i to them, that it shall be necessary for the State to prove that defendant had made at least two sales of intoxicating liquors within the period of limitation. In the 4th paragraph he told them that in order to constitute engaging in, or pursuing the said occupation or business, it is necessary for the State to prove, beyond a reasonable doubt, that the defendant unlawfully engaged in and followed said occupation and business in Hunt County at any time between January 1st and June 1, 1911, and that he unlawfully made, at least, as many as two sales of intoxicating liquors between said dates to the parties named in the indictment. Then in the next paragraph he submitted the ease to them correctly for their finding, and told them they must believe, beyond a reasonable doubt, that between said dates, appellant did unlawfully engage' in and pursue the said occupation and business as alleged in the indictment, and that between said dates alleged in the indictment he made as many as, at least, two different sales of' intoxicating liquors to any of the parties named in the indictment, and if they so believed, to find him guilty, but'unless they so find, beyond a reasonable doubt, to acquit him. Then in the next paragraph he told them that if they had a reasonable doubt as to whether appellant engaged in or pursued said occupation or business in Hunt County between said dates, or if they had a reasonable doubt as to whether he made as many as two sales to any of the parties named in the indictment, to acquit him. It is unnecessary in this connection to state the other issues submitted by the court to the jury. Taking this portion of the charge as a whole, it properly and substantially submitted correctly for a finding by the jury, the questions at issue. And appellant’s exceptions to said third paragraph of the charge, that it was calculated to lead the jury to.believe that two sales would establish tlie offense and that it was on the weight of the evidence; and to the fourth paragraph that it was on the weight of evidence and a repetition of the third paragraph and gave undue emphasis to the idea of the number of sales required to sustain the offense, are untenable and do not present any reversible error.
There are several separate grounds of the motion for a new trial to this effect: “The court erred in the fifth paragraph of his general charge.” Then the same to the 6th, 9th, 10th and 11th paragraphs. These are too general and point out no specific error so as to authorize or require this court to pass thereon. Berg v. State, and Ryan v. State, supra.
In the 7th sub-division of the court’s charge he told the jury that
if appellant ordered beer and whisky for the parties named in the indictment, or for others, and that he ordered it as an accommodation for said parties and collected the money from them before the order was made, then he would not be guilty of making sales of intoxicating liquors and the jury should acquit him. In the 8th he told them that if they believed from the evidence that appellant ordered whisky and beer for the parties named in the indictment and as an accommodation for them and collected the money from the parties before the order was made, or if they have a reasonable doubt of it, to acquit the defendant. Appellant objects to these paragraphs of the charge, claiming that whether he ordered the said liquor as an accommodation or not, he would not be guilty. These charges in this respect submitted specifically the appellant’s claim in the matter. He claimed that he ordered this as an accommodation to these parties and claimed that he collected the money therefor before he ordered it. This objection of appellant does not show any error in these paragraphs of the charge. They present the matter as favorably, if not more favorably, to the appellant than should have been done.
There being no reversible error, the judgment will be affirmed.
Affirmed.