
    PIERCE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1913.
    On Motion for Rehearing, March 19, 1913.)
    1. Criminal Law (§ 597) — Continuance-Application— Hearing.
    Evidence on an application for a continuance held, to justify the court in finding that the testimony which it was claimed an absent witness would give was probably not true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 597.]
    2. Criminal Law (§ 596) — Continuance— Absent Witness — Impeaching Evidence.
    A motion for a continuance because of the absence of a witness who would testify to contradictory statements by a witness for the state was properly denied, since a continuance will not be granted to secure impeaching testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Witnesses (§ 410) — Scope op Evidence in Rebuttal.
    Under White’s Ann. Code Or. Proe. art. 698, providing that the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears necessary to a due administration of justice, where defendant sought to impeach a witness for the state, evidence to support him was properly admitted in rebuttal.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 888; Dec. Dig. § 410.]
    4. Criminal Law (§ 1091) — Appeal—Bill op Exceptions.
    A bill of exceptions, complaining of a remark of the trial judge on an application for a continuance that he also wanted the absent witness present in order to predicate an indictment for perjury on the motion for the continuance, did not show error, where it appeared that no jury had been impaneled, and it was not shown that any juror who served heard the remark, or was objected to on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    5. Criminal Law (§ 1172) — Appeal—Harmless Error.
    In a prosecution for pursuing the business of selling intoxicating liquors, an instruction that the state must prove two sales to persons as alleged in the indictment, within two years preceding the filing of the indictment, instead of within three years, as provided by the statute, was error favorable to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    6. Criminal Law (§ 1172) — Appeal—Harmless Error.
    If an instruction that two sales of whisky would not of itself constitute the offense of engaging in the occupation of selling intoxicating liquors was on the weight of the testimony, it was error favorable to accused of which he could not complain.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig: § 1172.]
    7. Criminal Law (§ 761) — Trial—Instructions Assuming Facts.
    An instruction that two sales of whisky would not of itself constitute the offense of pursuing the occupation of selling intoxicating liquors, but that 'before any one could be convicted who was engaged in such occupation, the state must prove at least two sales, did not assume that accused was engaged in such business.
    [Ed. Note. — For other -cases, see Criminal Law, Cent. Dig. §§ 1731,1738, 1754-1764,1771; Dee. Dig. § 761.]
    8. Intoxicating Liquors (§ 239) — Criminal Prosecutions — Instructions.
    An instruction, in a prosecution for pursuing the business of selling intoxicating liquors, that if accused on or about five dates mentioned, “or on either of said days or dates,” unlawfully engaged in the business of selling intoxicating liquors, and if he also on those dates sold liquors to persons named, or made any two of such sales, to find him guilty as charged, did not authorize a conviction for a single sale, although the quoted portion might better have been omitted, since when read as a whole it required the jury to find that he engaged in the business and made at least two sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    9. Criminal Law (§ 1172) — Appeal—Harmless Error.
    On a trial for engaging in the business of selling intoxicating liquors, accused could not complain because the charge would have authorized the conviction of a druggist selling on prescription, where there was no evidence that he was a druggist or had a license to sell on prescription.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154^3157, 3159-8163, 3169; Dec. Dig. § 1172.]
    10. Intoxicating Liquors (§ 236) — Criminal Prosecutions — Sufficiency op Evidence.
    On a trial for violating the local option law, evidence held sufficient to support a jury finding that accused was engaged in the business of selling intoxicating liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    11. Criminal Law (§ 1172) — Appeal—Harmless Error.
    On a trial for pursuing the business of selling intoxicating liquors, an instruction that if the jury acquitted him of that offense they might find him guilty of making a sale of intoxicating liquors was harmless, where accused was convicted of engaging in the business of selling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    12. Intoxicating Liquors (§ 174) — Criminal Oppenses.
    The offense of pursuing the business or occupation of selling intoxicating liquors and the offense of making a single sale are separate and distinct, and are not degrees of the same offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 194; Dec. Dig. § 174.]
    On Motion for Rehearing.
    13. Criminal Law (§ 304) — Evidence—Judicial Notice — Local Option Laws.
    Courts cannot take judicial notice of those portions of the state in which local option has Been adopted, and on a trial for violating the local option laws, its adoption in that county must be proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717; Dec. Dig. § 304.]
    
      14. Criminal Law (§ 1100) — Appeal—Record— Sufficiency.
    Where the statement of facts showed that when the state introduced the orders of the commissioners’ court showing that local option had been adopted, defendant admitted that “the orders pertaining to local option 'being in force he considered read,” and waived their reading, it sufficiently showed that the orders were introduced in evidence; and that they showed that local option was in force, especially where the court charged that the orders established that fact, and accused made no complaint of such charge in the motion for a new trial or on the original argument on appeal, but contended for the first time on motion for a rehearing that the adoption of local option was not proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §’ 2919; Dec. Dig. § 1100.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    George Pierce, alias Sam Pierce, was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Forse & Wigley, of Newton, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory.

When the case was called for trial he filed an application for a continuance on account of the absence of Phillip Berren and J. A. Miller, alleging that he could prove, in substance, the same facts by each. The court •overruled the application, had additional process issued, and postponed the case until next morning. Miller was found, and attended court, when appellant filed an amended motion, basing it solely on the ground of the .absence of Berren. The evidence in the case would disclose that Miller testified and denied each fact that appellant had stated in his application he expected to prove by him. A number of witnesses also testify that the absent witness Berren was not at the place defendant alleged in his application, and when we consider the testimony of the witness Allen we do not think it hardly probable that the witness would testify that appellant did not sell any whisky to Allen. Allen says he purchased whisky from him on many occasions from October to March. The only allegation is that Berren would testify that appellant did not sell Allen whisky on March 16th and 17th. When no one of the witnesses who testified in the case ever saw Berren at the place where appellant lived and is said to have sold the whisky, and all say he had not been there, we think the court was authorized to find and hold that the testimony was not probably true. The facts stated it was expected to prove by the absent witnesses would only tend to impeach the witness Allen by proving contradictory statements, and it has always been held that a continuance will not be granted to secure testimony solely of an impeaching nature. Bolton v. State, 43 S. W. 1010, and cases cited in section 612, White’s Ann. Code of Crim. Procedure.

While the state was offering testimony in rebuttal it introduced J. A. Miller, to whose testimony the objection was made that “it was not in rebuttal of anything offered by defendant.” Since the adoption of article 698 of the Code of Criminal Procedure, it has always been held that the court may allow testimony to be introduced at any time before the argument is concluded, if in the opinion of the court it is necessary to a due administration of justice. The defendant had sought to impeach John Allen, and under such circumstances it would be permissible for the state to support him. Branch’s Crim. Law, § 874.

Appellant in another bill complains that it was error to permit the state to introduce in evidence a part of defendant’s first application for a continuance, in which he stated: “Defendant expects to prove, and will prove by the witness Miller, that he heard John Allen state he was telling a lie when he testified in justice court that he bought whisky from this defendant,” etc. The court states, in approving the bill, that no part of the application for a continuance was admitted in evidence, and the statement of facts signed as agreed to by counsel supports the court in his statement. The court further states that in arguing the admissibility of the testimony of Miller some reference was made to what defendant had contended he could prove by him, and this was the only reference made to it. As it is shown that it was not admitted in evidence, the court did not err in the matter.

Those two bills of exception which complain that the court erred in overruling the motion for new trial (1) “because the verdict and judgment rendered herein are contrary to law,” and (2) “because the evidence is not sufficient to sustain the conviction had hereunder, because it does not show that this was defendant’s occupation or business,” present no question for review, except that the testimony does not sustain the verdict. The evidence offered by the state amply supports a finding that he was pursuing the business alleged.

Appellant also complains that when this case was called for trial, and he moved to continue the case on account of the absence of the witness Miller, the court remarked “that he also wanted the witness Miller because he wanted to predicate an indictment for perjury on the motion for a continuance.” It appears by the qualification of the bill that no jury had been impaneled at this time; that on this application the court postponed the case until the next day, and had process .issued for this witness, whose attendance was secured. As the bills show that no jury had been impaneled, and it is not shown that any man who served on the jury heard the remark of the court, of if so that he was objected to on that ground by appellant, this presents no error.

The appellant selects the following paragraph of the court’s charge: “Two sales of whisky will not of itself constitute the offense of engaging in or pursuing the occupation or business of selling intoxicating liquor, but before any one can be convicted who is engaged in or pursuing the occupation or business of selling intoxicating liquors the state must prove at least two sales to one or more persons, as alleged in the indictment, within two years next preceding the filing of the indictment.” One complaint is that the court erred in stating two sales must be proven to have been made within two years; that this is not the law. This is true, but it is more favorable to defendant than is the letter of the law. The act making pursuing the occupation or business a felony says that at least two sales must be proven to have been made within three years, and the court in limiting the time to two years in which the sales could have been proven committed an error favorable to defendant, and of which he will not be heard to complain. The complaint that it is upon the weight of the testimony is also a matter of which defendant cannot complain. In telling the jury that “two sales in and of itself will not constitute the offense of engaging in the business,” if upon the weight of the testimony, would be as favorable to defendant as the matter could be stated, and the paragraph does not assume that the appellant was engaged in the business or occupation.

After giving this and other definitions of the law of the case, the court instructs the jury: “As to whether or not the defendant was engaged in or pursuing the occupation or business of selling intoxicating liquors in violation of law is a question of fact, for you to determine under all of the testimony and circumstances in evidence before you” — and then submits the issues in the following language: “Now, gentlemen of the jury, bearing in mind all of the foregoing instructions of law and the evidence before you, you will consider of your verdict, and if you believe beyond a reasonable doubt that the defendant, in Newton county, Tex., on or about the 17th day of December, 1911, and on or about the 22d day of December, 1911, and on or about the 16th day of March, 1912, and on or about the 17th day of March, 1912, and on or about the 20th day of March, 1912, or on either said days and dates, did unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, and you further believe beyond a reasonable doubt that he also in said county and state on the 17th day of December, 1911, did sell intoxicating liquors to Wm. Gheatham in violation of law, and on or about the 22d day of December, 1911, sell intoxicating liquor to Jim Boyd in violation of law, and did on or about the 17th day of March, 1912, sell intoxicating liquors to John Allen, in violation of law, and on or about the 20th day of March, 1912, sell intoxicating liquors to John Allen, or did make any two of said sales, you will find the defendant guilty as charged in the indictment and assess his punishment at confinement in the penitentiary for any time not less than two nor more than five years as you may determine and so say in your verdict.”

This latter paragraph is also criticised by appellant, the objection as stated being “that it virtually instructs the jury that if they believe that this defendant made one sale on either or any of the said above-mentioned dates, they would find him guilty of the offense of pursuing the occupation.” The charge is. not subject to this criticism. It instructs the jury that they must find, first, that he was engaged in the business or occupation on given dates, and made sales to certain parties, “or did make any two of them.” It would have, been better to have left out the words “or on either of said days or dates” where they occur in ..the paragraph, yet when the paragraph as a whole is read, the court informs the jury that at least two sales must be proven while defendant was pursuing the business or occupation, and no other inference or deduction could have been drawn from the language used.

The criticism of the paragraph defining occupation or business is on the ground that it “instructed the jury that any person who buys whisky or other intoxicants one time for the purpose of selling it to another, and who does actually sell it to such other, making one sale only, and that sale being the result of one purchase, is guilty of pursuing the occupation,” etc. This paragraph is not subject to such construction. In no part of the charge is the jury authorized to convict defendant of the business or occupation on making only one sale, but the charge as a whole instructs the jury that they must find that he was engaged in the business or occupation and made at least two sales. While the definition of “occupation or business” is perhaps not as full as it should have been, it is not objected to on that ground; no special charge is asked, and the objections made present no error. The criticism that it authorizes the jury to “convict a druggist who sells intoxicating liquor on prescription,” etc., might have had some foundation if there was any evidence that appellant was a druggist, or had license to sell on prescription, but the evidence excludes that idea. It shows that he was running a boarding house at a lumber or logging camp, and there is no suggestion that he had a license, and it has always been tbe rule of law in tbis state that an issue not made by tbe evidence néed not be submitted to tbe jury.

Wm. Obeatbam testified that on tbe 17tb day of December be secured a pint of whisky from appellant and paid bim 90 cents for it; that be got it at appellant’s boarding bouse in Logtown. Jim Boyd testified that in December be purchased a quart of whisky, from appellant at bis boarding bouse, paying bim $1.80 for it; that at tbe time be purchased tbis quart appellant bad five or six quarts on hand that be saw at tbe place where appellant got bim bis quart. John Allen testified that be purchased whisky from appellant at bis boarding bouse over a period of time extending from October to March; that be bad purchased whisky from appellant at least five or six times during that period ; that be could not say bow many times be bad purchased it; that he paid $1.80 per quart for tbe whisky; that whenever be wanted whisky be went to appellant at bis boarding bouse and always got it. Appellant offered no testimony that be did not make these sales, except that be rigidly cross-examined tbe two witnesses first named, and sought to break down Allen’s testimony by cross-examination and introducing testimony tending to impeach bim. We think tbis testimony would fully support a verdict that appellant was engaged in tbe business or occupation, and by it it is seen there is no suggestion that “appellant was a druggist selling on prescription.”

There is one other criticism of tbe charge of tbe court, and it presents error, but is it an error of which appellant can complain, and which should cause a reversal of tbe case? Tbe court instructed tbe jury: “If you are not satisfied beyond a reasonable doubt that tbe defendant is guilty of engaging in and pursuing tbe occupation and business of selling intoxicating liquors in violation of law, then you will acquit bim of that offense and consider further of your verdict, and if you believe beyond a reasonable doubt that tbe defendant did in Newton county, Tex., on or about tbe time alleged in tbe indictment, make a sale of intoxicating liquor to Wm. Cheatham, Jim Boyd, John Allen, or either of them, then you will find tbe defendant guilty of selling intoxicating liquors in violation of tbe local option law, and assess his punishment at a fine of not less than $25 nor more than $100 and by confinement in the county jail for not less than 20 nor more than 60 days, as you may determine and so say in your verdict.” Tbis is not tbe law, and tbis paragraph of tbe charge of tbe court should not have been given; but, it having been given, it but emphasizes the fact that tbe complaints of tbe charge that the charge authorized a conviction of defendant for pursuing tbe occupation if be made one sale are unfounded. A charge must always be construed as a whole, and when so taken, if it fairly presents the law of tbe case, no error is presented. Under all these instructions tbe jury convicted appellant of pursuing tbe 'occupation or business, and assessed bis punishment at confinement in tbe penitentiary ■for-two years, thus not only finding that appellant made sales to tbe persons named in tbe indictment, but that be was also engaged in that business or occupation, for they were specifically told in the charge if they did not find be was engaged in that occupation, to find bim guilty of only a misdemeanor, and assess bis punishment at a fine, etc. Had tbe jury found appellant guilty of tbe latter offense, the verdict could not be sustained, for pursuing tbe business or occupation and making a single sale are separate and distinct offenses, and are not degrees of tbe same offense under article 752 of tbe Code of Criminal Procedure. They are as much separate and distinct offenses as are theft and burglary, and no one would contend that, under an indictment charging theft only, a party could be convicted of burglary, nor if burglary alone was charged, one could be convicted of theft. So in tbis case, the appellant being charged with tbe offense of pursuing tbe business or occupation of selling intoxicating liquors', be could not be convicted of the offense of merely making a sale or sales of intoxicating liquors when not pursuing that business of occupation. However, as be was in fact convicted of tbe offense with which be was charged in tbe indictment, does tbe fact that tbe court in bis charge authorized a conviction (if tbe jury found be was not guilty of the offense charged in tbe indictment) of an offense not. charged in tbe indictment, when such offense has provided therefor a much less penalty, necessarily result in a reversal of a case? Had be been convicted of tbe offense not charged in tbe indictment, there can be no question tbe case would necessarily be reversed, but having been convicted of the offense with which be was charged, could tbe giving of tbis paragraph of the charge have been injurious to defendant? Authorizing one to be convicted of a degree of offense not raised by tbe evidence, where tbe offense contains degrees, and where tbe punishment is much less for the degree submitted than that for tbe offense of which be stands charged, has been frequently held to be an error of which a defendant cannot complain, and tbis even though tbe defendant is convicted of tbe lesser degree of tbe offense. In this case, under tbe mistaken idea that the offense of selling intoxicating liquors was but a degree of tbe offense of pursuing tbe business or occupation of1 selling intoxicating liquors, tbe court submitted botñ offenses, but inasmuch as tbis charge was favorable to defendant in that it presented clearly and succinctly to tbe jury that they could not convict defendant of the offense charged for making a sale of ■ intoxicating liquors, but must further find that be was, in making tbe sales, pursuing that business or occupation, it is such error in this case as is only not harmful to appellant, but really beneficial to him, and as he was found’guilty, under such circumstances, of the graver offense, and of the offense really charged in the indictment, the error is harmless, and under such circumstances, under the laws of this state, we are not authorized to reverse the case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing presenting only one question, and one that was not presented in appellant’s brief, nor in his motion for new trial. In fact it is first suggested by him in this motion for rehearing in this court, and that is: “There is no evidence to show local option was in force in Newton county, nor was it admitted that local option' was in force in Newton county.” If this is true, it is strange that appellant did not raise that question in the trial of the case, and did not assign as error the part 9f the charge of the court wherein the court instructed the jury that prohibition was in force in Newton county. Of course, if appellant’s contention, even though raised this late, is correct, it would be fatal to the conviction, because this court, and no other court, can taire judicial notice of those portions of this state in which local option has been adopted, but in the trial of the case it must be proven that local option has been adopted. However, in this record, we think this fact was proven in the trial of the case, and appellant’s attempt at this late hour to take advantage of perhaps an inapt expression in the statement of facts showing that fact will not be allowed. In the statement of facts agreed to by appellant’s counsel, it is shown that when the state introduced in evidence the orders of the commissioners’ court showing that local option had been adopted, defendant made the following admission: “Defendant: It is admitted that the orders pertaining to local option being in force be considered read; that is, we waive the reading of the orders.”

This clearly shows that the orders were introduced in evidence, and that they showed that local option was in force in that county. In his charge the court instructed the jury: “The orders of the commissioners’ court read before you establishes that the law prohibiting the sale of intoxicating liquors in Newton county, Tex., is in force, and that said law is now, and was at the time of the alleged sales, in force, and that it was unlawful to make sales, if any were made, as alleged.” As stated hereinbefore, appellant in his motion for new trial, made no complaint of this paragraph of the court’s charge, and in said motion there is no allegation that this fact had not been proven, and in the brief filed in this court there was no such contention, and it is first attempted to be raised in a motion for rehearing in this court. Defendant having made the admission and statement the record shows he made in tlie court below, will not now be heard to complain that the record is not more explicit.

The motion for rehearing is overruled.  