
    TREZEVANT v. STATE.
    (Court of Criminal Appeals of Texas.
    April 3, 1912.)
    1. Intoxicating Liquors (§ 50) — Unlawful Sales — Licenses—Sales by Clubs.
    Under the statutes making it an offense to sell intoxicating liquors in quantities of one gallon or less, without first obtaining a license, a club, formed for social and literary purposes, charging a membership. fee and monthly dues, on nonpayment of which members were suspended, may sell intoxicating liquors to its members without taking out- a license.
    [Ed. Note.- — For other cases, see Intoxicating Liquors, Cent. Dig. § 51; Dee. Dig. § 50.]
    2. Intoxicating Liquors (§ 206) — Criminal Prosecutions — Indictments—Carrying on Business.
    An indictment for the offense of selling intoxicating liquors in quantities of one. gallon or less, without first obtaining license to do so, need not allege that defendant was pursuing the occupation of a retail liquor dealer.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 226; Dee. Dig. § 206.]
    3. Intoxicating Liquors (§ 172) — Unlawful Sales — Licenses—Sale by Officers of Club.
    Where a club, formed for social and literary purposes, and having a membership and charging membership dues, has a bar and a stock of liquors kept for sale, the officer or person in charge who makes a sale of liquor to a person not a member is guilty under the statute making it an offense to sell intoxicating liquors in certain quantities, without first obtaining a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 186; Dec. Dig. § 172.]
    4. Intoxicating Liquors (§ 233)— Criminal Prosecution — Admissibility of Evidence.
    In a prosecution for selling intoxicating liquors in quantities of one gallon or less, without first obtaining a license, evidence that defendant, after his attention was called by officers to the fact of an alleged unlawful sale, but while he was not under arrest, asked how much it would take to square the thing was admissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298]4; Dec. Dig. § 233.]
    5. Criminal Law (§ 1090) — Appea3>-Bill of Exceptions.
    Where no bill of exceptions was reserved to the action of the trial court in not permitting certain witnesses to testify, that ground cannot be considered in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Tarrant County Court; R. E. Bratton, Judge.
    Will Trezevant was convicted of selling intoxicating liquors without a license, and he appeals.
    Affirmed.
    Baskin, Dodge & Eastus, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cáseo see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under an information and complaint charging him with selling intoxicating liquors in quantities of one gallon or less, without first obtaining a license to do so under the laws of this state.

The facts would seem to indicate that appellant was secretary and manager of the Colored Country Club of Ft. Worth, Tex., which organization is a chartered institution; it being alleged that it was formed for the purpose of promoting and cultivating social and literary intercourse among the colored people of Tarrant county and the adjoining counties. A "membership fee of one dollar is charged, and the dues' are fixed at 50 cents a month. To remain in good standing, the monthly dues must be paid, and one who permits himself to get in arrears for two months is suspended. Taking' the charter purposes as explained by the testimony, the club would be a bona fide institution, and, as held by the Supreme Court in the case of State v. Duke, 137 S. W. 654, and by this court in the 'case of Adams v. State, 145 S. W. 940, recently decided, and the cases cited in those two opinions, the club would be permitted to sell intoxicating liquors to its members, without taking out license so to do. This question we do not deem it necessary to further discuss, but merely refer to those decisions.

However, in the complaint and information, tile sale is alleged to have been made to Myrtle Glover, and there is no contention made that she is a member of the club. It was denied that any sale was made to her, but insisted that the sale was made to George Alexander, who says he is a member of the club, and invited Myrtle Glover and another woman to accompany him to the club as his guests. That the two women drank beer, sitting at a table in the clnbroom, is not disputed, and the whole contest is over to whom was the sale made. The state did not insist, if the sale was made to a member of the club, the defendant would be guilty of any offense; but it insisted and offered evidence to prove that the sale was made direct to the woman; and the evidence, while conflicting, would support a verdict of the jury so finding.

The court, at the request of appellant, instructed the jury: “You are instructed that if you find and believe from the evidence before you in this ease that the defendant, Will Trezevant, was the secretary of what is known as the Colored Country Club, and you further find and believe that said club was a bona fide club, chartered under the laws of the state of Texas,' and that the defendant, as the secretary of such club, knowingly permitted intoxicating malt liquors to be sold to one Alexander, a bona fide member of the club in good standing, to be served to the Glover woman and her companion, invited guests of the club, on the date charged in the indictment, but you further find that said sale, if any, was made in good faith to the said Alexander, as a member of the club, and afterwards served to the Glover woman and her companion as guests of the club, then you are instructed that such sale, if any, is not denounced by law; and it will be your duty to acquit the defendant.”

The court- also gave the following charge, requested by appellant: “You are instructed that you cannot convict the defendant in this case, unless you find and believe from the evidence, beyond a reasonable doubt, that the defendant was engaged in the business of dispensing intoxicating malt liquors to persons other than bona fide members of a bona fide club in good faith; and if you have a reasonable doubt as to whether or not he was engaged in such business it will be your duty to acquit the defendant.”

In fact, all the special charges requested by appellant were given, except the one requesting the court to peremptorily instruct a verdict of not guilty. Thus it is seen that the issue as to whom the sale was made was fairly submitted to the jury; and they found against appellant’s contention. So, in discussing the remaining questions, we will treat the case as a sale by a club to a person not a member thereof.

It Is insisted that the information is defective, in that it does not charge that appellant was “pursuing the occupation,” etc. Our statutes now do not require such an allegation; but it is provided that any person who shall sell intoxicating liquors is liable .to the penalty fixed by law. It is true that this court has held, in the case of Cassidy v. State, 58 Tex. Cr. R. 454, 126 S. W. 600, that a person who makes an isolated sale of liquors would not be guilty; but each case must be decided on the evidence introduced. In this case there is a bar fixed up with a stock of liquors kept for sale; the steward, or person in control, is presumed to know who are members and entitled to purchase; and if such a person who has charge of the liquor kept for sale makes a sale of liquor to a person not a member he would be guilty of an offense. In addition to this, the testimony of the witness Musick and others would indicate that sales were being made to all persons who desired to purchase on the occasion they visited the place. The court did not err in overruling the motion to quash the information.

While the defendant was on the witness stand testifying in his own behalf, on cross-examination, he was asked, if after having his attention called by the officers to the fact that a' sale of liquor had been made to Myrtle Glover, he did not ask the witness Musick, “How much will it take to square this thing?” He denied making such a statement, but says what he did -say was: “Mr. Musick, I am trying to run a straight place, and what have you all got against me?” In rebuttal, Musick was permitted to testify that appellant had made such a statement to him, as was also Deputy Sheriff Thompson; the testimony of the two officers being objected to, on the ground that “it was an effort to impeach the defendant upon an immaterial issue, and sought to elicit evidence of a highly prejudicial nature.” There is no contention that appellant was under arrest at this time, and it is shown that he knew with what offense he was charged; and if it be considered, either in the light that it was admitting the sale, or that he was endeavoring to pay the officer to keep him from testifying against him, it would be admissible.

There was no bill reserved to the action of the court in not permitting the witnesses Waldon and Shannon Trezevant to testify; consequently we cannot consider this ground in the motion for a new trial.

As we view the law, the steward or other officer of the club who makes a sale of intoxicating lio-or to a person other than a member of the club would be guilty of an offense; consequently we are of opinion that the judgment should be affirmed.  