
    NOBLES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1. Intoxicating Liquobs (§ 205) — Offenses —Indictment.
    An indictment for violation of the prohibition law is not subject to motion to quash, because not specifically stating the date of the election when prohibition was carried, and whether the law was put in force prior or subsequent to Acts 31st Leg. (1st Ex. Sess.) c. 35, which makes subsequent violations felonies instead of misdemeanors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Intoxicating Liquobs (§ 236) — Offenses —Evidence—Sufficiency.
    In a prosecution for violating the prohibition law, evidence held to show that the law was in force before the sales were made.,
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3.Intoxicating Liquobs (§ 176) — Offenses —Defenses—Attack on Ejection.
    Under Acts 30th Leg. (1st Ex. Sess.) c. 8 (Rev. Civ. St. 1911, art. 5728), providing that any time within 30 days after the result of an election, if prohibition carried, has been announced any voter may contest it, that after such contest it shall not be permissible again to call the legality of the election in question in any suit or prosecution, and that if no contest be filed, it shall be conclusively presumed that such election was valid, the validity of a prohibition election cannot be attacked in a prosecution for violations of the law, particularly where the oral evidence showed violations after it went into effect.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 176.]
    4. Intoxicating Liquobs (§ 238) — Offenses —Juby Questions.
    In a prosecution for violation of the prohibition law, evidence as to whether accused made unlawful sales held for the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-339; Dec. Dig. § 238.]
    5.Intoxicating Liquobs (§ 239) — Offenses —Instbuctions.
    In a prosecution for violating the prohibition law, charges that the burden was on the state to prove, beyond a reasonable doubt, that accused sold the liquor as charged, and that he was not acting as agent for the prosecuting witness, and if he was, there was no sale, sufficiently presents 'the defense that accused merely procured the liquor as the witness’ agent.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. 239.]
    6. Criminal Law (§ 372) — Evidence—Other Crimes.
    While ordinarily, in a prosecution for violating the prohibitory law, evidence of other sales is not admissible, yet where the evidence as to the making of the sale is conflicting, testimony that accused made sales to other persons is admissible solely on the ground that it tends to show that he made the sale in question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.]
    7. Intoxicating Liquobs (§ 239) — Offenses —Instructions.
    In a prosecution for violating the prohibition law, a charge that if accused, “with the purpose” and “for the purpose” of evading such law did sell intoxicating liquors, he should be found guilty is improper in the use of the quoted phrases; for there is no law punishing a man for selling intoxicating liquor in prohibi-ción territory for such purpose.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent Dig. §§ 331-347; Dec. Dig. 1 239.]
    8. Criminad Law (§ 1172) — Appeal—Harm - less Errob.
    But such error is not reversible error under Code Cr. Proc. 1911, art. 743, declaring that a judgment shall not be reversed unless the error was calculated to injure the rights of accused, for the charge merely placed an additional burden on the state, and could not have harmed accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    9. Criminal Law (§ 784) — Trial—Instructions.
    A charge on circumstantial evidence is required only where the evidence of the offense is inferential, and not direct and positive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922,1960; Dec. Dig. § 784.]
    On Motion for Rehearing.
    10. Criminal Law (§ 1137) — Appeal—Statement of Facts.
    An appellant has the burden of preparing a complete statement of facts; consequently where accused accepted a statement of facts which did not include a written statement, made by him to the prosecuting attorney and introduced in evidence by such attorney, he cannot complain of the loss of the statement by the prosecuting attorney after the trial, it appearing that the statement of facts was signed by the court and agreed to by counsel.
    [Ed. Note. — For other cases, see Criminal Law^Oent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    11. Criminal Law (§ 1165) — Appeau-Harmless Error.
    In a prosecution for violating the prohibition law, accused cannot complain that the prosecutor lost a written statement made by him prior to the trial, which was introduced by the state, and so was included in the statement of facts ; for the statement must obviously have been detrimental to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Appeal from District Court, McLennan. County; Richard I. Munroe, Judge.
    Mason Nobles was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    Joe W. Taylor, Sr., of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted, and his penalty fixed at one yeár’s confinement in the penitentiary for violation of the prohibition law in the town of Mart, McLennan county, Tex.

The indictment in this case strictly conforms to the form approved uniformly and held good by this court under all the decisions. Holloway v. State, 53 Tex. Cr. R. 246, 110 S. W. 745; Shilling v. State, 51 S. W. 240; Stephens v. State, 97 S. W. 483; Starnes v. State, 52 Tex. Cr. R. 403, 107 S. W. 550; Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544; Garner v. State, 62 Tex. Cr. R. 526, 138 S. W. 124; and a large number of other eases unnecessary to cite.

The indictment does not specifically allege the date of the election and when prohibition was carried and the law put in force. The appellant made a motion in the court below to quash the indictment because of this, claiming, since the act of 1909, and the enactment of the Revised Penal Code in 1911, making the offense punishable by confinement in the penitentiary, when an election was held thereafter, and making it a misdemean- or only when elections were held before that act became effective, that an indictment was bad which did not allege the date prohibition was put in force, so that it could be told on the face thereof whether it was a felony or misdemeanor. So far as we can find, the first case in which this question was presented was Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782. In that case this court properly held that that was no ground for quashing the indictment. Since then this court has uniformly adhered, and still adheres, to that decision. See Head v. State, 141 S. W. 536; Mealer v. State, 145 S. W. 353; Hamilton v. State, 145 S. W. 348; Meyer v. State, 145 S. W. 919; Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124. We do not undertake to collate all of the cases so holding. There is in the record a motion to quash the indictment on this ground. It is not sworn to, nor does it attempt to set up that prohibition in Mart in fact was adopted and in force before the felony clause of the statute became effective. The record does not show that this motion to quash was presented to and acted upon by the court; but, even if it was, and the court overruled it, the court’s action was correct.

Another contention by appellant is that this conviction must be reversed because the state did not introduce in evidence the order made by the commissioners’ court, or the county judge, that the necessary four weeks’ publication had been made that prohibition was in force in said town of Mart. The record does show a correct order by the commissioners’ court of McLennan county, dated April 8, 1912, that upon a proper petition therefor an election to determine whether or not prohibition should be put in force in said town was duly ordered. Following this was the order of the commissioners’ court of May 6, 1912, declaring that said election was duly held, prohibition carried by a majority vote, reciting the votes for and against prohibition, and the majority, and declaring that prohibition carried. Further: “And it is hereby ordered that the sale of intoxicating liquors be and the same is hereby absolutely prohibited in the said town of Mart, except for the purpose under the regulations prescribed by article 3385 of the Revised Statutes of the State of Texas of 1895, until such time as the qualified voters in said town of Mart may, at a legal elfection for that purpose, by a majority of votes, decide otherwise.” The sale alleged to have been made by appellant was on August 10,1912. Fred Scott, the person to whom said sale was alleged to have been made, testified, in substance and in effect, that he had bought-from appellant in Mart, on August 10, 1912, as well as two or three times shortly before then, intoxicating liquors, all after prohibition went into effect in said town. Another witness also testified that he bought intoxicating liquor from appellant in June, 1912, and also afterwards, prior to August 10, 1912, all after local option went into effect in said town, and that such purchase made in June was not before the saloons were closed because prohibition had gone into effect. There is much other evidence in the record showing, after prohibition went into effect in Mart, that in June, 1912, and afterwards, prior to August 10, 1912, and' especially in August prior to August 10th, appellant frequently sent from Mart to Otto in Falls county, several miles distant, by a person who ran an automobile between the two points, and bought and had brought to him from Otto to the restaurant in Mart, where he was working, much intoxicating liquors. In other words, the record amply shows, by all of this oral testimony, that prohibition was in force in Mart by virtue of said election and order from at least early in June, 1912, and continuously thereafter.

By the act of 1907, passed at the First Special Session of the Legislature, page 447, now article 5728 of the Revised Statutes of Texas, it was enacted that at any time within 30 days after the result of an election for prohibition has been declared carried, any qualified voter within such territory may contest said election in the district court of the county in which such election has been held, and that such court shall have jurisdiction to try and determine all matters connected with said election, including the petition therefor and all proceedings and orders relating thereto, embracing the final count and declaration and publication of the result putting local option into effect, and that such cases shall have precedence in the district and appellate courts, and that the result of such contest shall finally settle all questions relating to the validity of said election and it shall not he permissible to again call the legality of said election in question m any other suit or proceeding, and, further “that if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared, are in all respects valid and binding upon all courts.” There is no intimation by this record, or otherwise, that any such suit was instituted and resulted in any way in declaring said election illegal, and that prohibition was not thereby put in force in the town of Mart. Ever since the enactment of this statute this court has uniformly, and in many eases, held, as the statute prescribes, that it shall he conclusively presumes, that such election as held and the result thereof declared, are in all respects valid and binding lopori all courts. Jerue v. State, 57 Tex. Cr. R. 213, 123 S. W. 414; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Thulemeyer v. State, 56 Tex. Cr. R. 337, 119 S. W. 1146; Wilson v. State, 107 S. W. 818; Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547; Alexander v. State, 53 Tex. Cr. R. 504, 111 S. W. 145; Romero v. State, 56 Tex. Cr. R. 436, 120 S. W. 859; Doyle v. State, 127 S. W. 816; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; and other cases not collated. So that appellant’s contention on this point, which was raised in various ways by the record, cannot be sustained, and no error on this point is shown by the action of the lower court in the various ways complained of by appellant, especially as the oral evidence shows this sale was made after prohibition went into effect.

Another contention by appellant is that the evidence is insufficient to show a sale by appellant to Fred Scott, as alleged, but that the evidence conclusively shows that appellant was merely acting as the agent of Fred Scott, and as such agent sent for the whisky to Otto by the automobile man, and, upon its being bought at Otto and returned to him (appellant) at Mart, that as such agent he merely delivered the possession thereof to Fred Scott. The testimony on this point was conflicting. That of Fred Scott, and the many circumstances and other evidence, tended to show, and was sufficient to show, that it was a direct sale by appellant to Scott. On the other hand, the appellant’s evidence tended to show his contention as to this particular claimed sale. The evidence was sufficient, if believed by the jury, to have established his defense and secured his acquittal, but this question was specifically and repeatedly submitted to the jury under a proper charge, and the jury found that it was a sale, and that appellant was not acting as the agent in procuring and delivering the whisky to Fred Scott. The court in the main charge, not only correctly charged the reasonable doubt in appellant’s favor, and that the burden of proof was on the state, but required the jury to believe, beyond a reasonable doubt, before they could convict him that he did, as charged in the indictment, in Mart, on or about August 10, 1912, sell to Fred Scott whisky. And in the paragraph submitting that question told them that if they had a reasonable doubt thereof, to acquit him. In addition to this, in a separate paragraph, the court in the main charge told the jury that if they believed from the evidence that the witness Fred Scott, on or about the time alleged in the indictment, handed to the defendant some money, and requested him to get him some whisky, and the defendant, acting as the agent of said Scott, handed the money to one Berl Hudson (who was the automobile man) and requested him to get him some whisky, and that said Hudson bought said whisky at Otto, or Riesel, and brought the whisky back to defendant, and if defendant delivered said whisky to said Scott, or placed it where he got it, or if they had a reasonable doubt thereof, to acquit appellant. Still, in addition to this, the court gave two special charges requested by appellant. One to the effect that the jury are instructed that in all criminal cases the burden of proof is on the state to prove all material facts necessary to constitute the violation of the law, and in considering this testimony, which has been introduced herein by the state, if there remains in your mind any reasonable doubt as to whether or not the delivery of this liquor mentioned in the indictment to Fred Scott was an actual sale, or whether or not in making said procurement of liquor by defendant and the delivering to Fred Scott, the defendant acted as agent of said Scott, the purchaser, in procuring the said liquor for him from Otto through the agency of Berl Hudson, to find him not guilty. The other is to the effect that the jury are charged that in the indictment herein the defendant is charged with having, on August 10, 1912, sold to Fred Scott intoxicating liquor, to wit, whisky, in the town of Mart, in violation of the local option law; that in this case yon are charged that the burden of proof is upon the state to show beyond a reasonable doubt that the alleged liquor was, on the alleged date, sold by defendant to Fred Scott in the town of Mart, and unless the state has shown to your satisfaction beyond a reasonable doubt that said sale was so made in the town of Mart on the date alleged in the indictment, to find defendant not guilty; and further, that if in the delivery of said liquor by the defendant to Fred Scott, the defendant acted as the agent of Scott in procuring said liquor from Otto for him at his request, then there would be no sale of liquor, and if you have a reasonable doubt on this question, you will give the defendant the benefit of it and acquit him. This certainly presented this contested point to the jury in every way as favorable as it should or could have been submitted, and the jury found against appellant. The evidence was sufficient to justify their finding.

Another contention by appellant is that the court should not have permitted the state to prove by other witnesses, over his objections, which was done, that the appellant in June, 1912, and in August prior to August 10, 1912, made to the several witnesses who so testified other and separate sales of intoxicating liquor to such witness, claiming that such evidence did not tend to develop the res gestee, or establish system, or to connect the appellant with the alleged sale to Scott, and that the sale in June to one of the witnesses was too remote. He cites several eases to the effect that where the sole question in the case was whether or not a particular sale had been made, and the question at issue was solely whether or not this particular sale had been made, other and distinct sales were not admissible. As said by this court in the recent case of James v. State, 63 Tex. Cr. R. 80, 138 S. W. 615, “It is well settled, where the sale has been made out positively and clearly, that the introduction of other sales is not permissible as evidence to go to the jury. But it is also well settled that there are exceptions to this general rule, and if the evidence tends to develop res gestee, or show the intent or connect the defendant with the offense for which he is being tried, or it is intended to show system, where system becomes a part of the ease, it may be pertinent.” This latter rule is well established, and has in many cases been held in prosecutions for violating the' prohibition law. See Prinzel v. State, 35 Tex. Cr. R. 274, 33 S. W. 350; Bennett v. State, 50 S. W. 945; Young v. State, 66 S. W. 567; Skipwith v. State, 68 S. W. 278; Holland v. State, 51 Tex. Cr. R. 142, 101 S. W. 1005; Efird v. State, 44 Tex. Cr. R. 448, 71 S. W. 957; Hollar v. State, 73 S. W. 961; Roach v. State, 47 Tex. Cr. R. 500, 84 S. W. 586; Gorman v. State, 52 Tex. Cr. R. 329, 106 S. W. 384; Bruce v. State, 39 S. W. 683; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111. It is unnecessary to cite other cases.

As shown above, appellant contested, most vigorously, the fact that he had made any sale to said Scott, as alleged in the indictment. He contended that it was not a sale, but that he acted solely as the agent of Scott in procuring and delivering to him the liquor charged to have been a sale in this case. So that unquestionably this evidence of other sales by appellant to these several witnesses was pertinent and admissible. The court, by proper charge, told the jury that they could not convict the appellant in this case for any of said other sales, even if made, but that if they considered the evidence of them at all, they could only do so for the purpose of aiding them to determine the course of business of appellant, if any, with reference to the sale charged by the indictment, and that they could consider the testimony for no other purpose.

The court in the second clause of the main charge, in telling the jury what the law is, stated, in effect, that the law pro* vides that if any person shall sell intoxicating liquor in any town in which such sale is prohibited under the laws, “with the purpose of evading the provisions of said law,” he shall be punished, etc. And again, in submitting the case to the jury for a finding, he told them that if they believed from the evidence beyond a reasonable doubt that the defendant, as charged in the indictment, in the town of Mart, on August 10, 1912, “for the purpose of evading the provisions of the local option law” did sell to Ered Scott intoxicating liquors, to wit, whisky, to find him guilty, etc. Appellant contends that the two expressions in the charge above quoted “with the purpose” and “for the purpose” of evading the provisions of said law are erroneous, for the reason that there is no law of this state punishing a man for selling intoxicating liquors in prohibition territory for such purpose, and that the charge containing this was misleading, not in response to the allegations in the indictment, and was an error in the definition of the act and offense alleged. These expressions should not have been used by the court in the charge. But in our opinion appellant was not and could not have been injured thereby. Instead of being against him, it was an additional burden placed upon the state, which should not have been required. It makes no difference under the law for what purpose an illegal sale of liquor in prohibition territory is made, nor that such sale must be made for the purpose of evading the law. The law is, if the illegal sale was made, it was a violation of the law. As stated above, while these expressions in the court’s charge were erroneous, it could not and did not injure appellant, because the court, by its charge, clearly required the jury to believe that appellant made the sale as alleged in the indictment, and that the jury must so believe beyond a reasonable doubt before they could convict. And as shown above, not only submitted repeatedly that the burden was upon the state, and the reasonable doubt in favor of the appellant, but in every way submitted appellant’s defense that he was acting as the agent only of the alleged purchaser1, and that he did not make a sale to him, all of which questions were decided against appellant. Under such circumstances this court is prohibited from reversing the case. Article 743, O. G. P.

As said by Judge White in subdivision 2, § 813, p. 531, of his Ann. C. O. P.: “It is only in cases of, or purely dependent upon, circumstantial evidence that the court is required to instruct upon the rules of law applicable to such evidence. It should not be charged upon where the evidence is direct and positive (citing many cases).” In this ease no charge on circumstantial evidence was required, and the court committed no error in not charging thereon.

We have not taken up separately each of appellant’s claimed errors on- the trial of this case. We did not deem it necessary to do so. But we have taken up, discussed, and decided every question properly raised and assigned as error. Various questions are raised by appellant; some of them raised in various and different ways. None of appellant’s contentions show any reversible error.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant, by his motion for rehearing, presents some of the questions that were thoroughly considered and decided against him in the original opinion herein. We have carefully considered his motion for rehearing, and there is nothing new presented that in a"ny way changes our views, or makes it necessary to further discuss the questions decided.

He has also presented a supplemental motion for rehearing, wherein he claims that the statement of facts shows that it is not a statement of the facts, and that a written instrument, signed by the appellant, was introduced in evidence by the state, which was not inserted in the statement of facts, and that the same was lost in the county attorney’s office, and no effort made by the state to substitute the same, or in any other way embody it in the record, so as to make it a complete and true statement of the facts. The law is that when an appellant appeals, the burden is on him to prepare a complete statement of facts, and it is not upon the state to do so. On this point the statement of facts shows that Prank Tirey, the assistant county attorney of McLennan county, produced a statement made by appellant to him, and which was signed by appellant, and it was then introduced in evidence by the state on the trial of this cause. The statement of facts on this point says: “Statement made before Prank Tirey by Mason Nobles offered in evidence (the statement was in writing, and read as evidence to the jury. The statement has been lost or mislaid in the county attorney’s office, and cannot be found. Hence the same is not copied herein.)” The certificate of the court stenographer, to the statement of facts, says: “The above and foregoing statement of facts constitute a true and correct copy of all of the material evidence, and none other introduced upon the trial.” The attorneys for the state and appellant agree as follows: “We, the undersigned attorneys for the plaintiff and defendant, hereby agree that the above and foregoing statement of facts is a true and correct statement of the material facts proved on the trial of said cause.” This is signed by the county attorney for the state and appellant’s attorney for the appellant, and is approved by the district judge.

All this is not only conclusive against' this court, but the appellant herein agreed that the said statement of facts as prepared and agreed to, “is a true and correct statement of the material facts proved on the trial.” Instead of the statement of facts as agreed to, omitting said signed statement by appellant, being against him, it is clearly in his favor. If it was material at all, it must have been against him, for it is shown to have been produced and introduced by the state, and not by him. This presents no error, and could not be the basis of a reversal of this case.

The motion is overruled.  