
    B. A. Lester v. State.
    No. 2255.
    Decided February 5, 1913.
    1. —Occupation—Selling Intoxicating Liquors—Local Option—-Insufficiency of the Evidence—Charge of Court.
    "Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence did not show that the defendant sold such liquors to the parties alleged in the indictment, and did not show that local option was in force, and the court did not charge the law of the case, the conviction could not be sustained.
    2. —Same—Evidence—Law in Force.
    "Where, upon trial of pursuing the occupation of selling intoxicating liquors, in local option territory, it was not shown that local option was in force, the mere fact that the State offered such testimony, but the record did not show that it was introduced, the same was insufficient.
    Appeal from the District Court of Wichita. Tried below before the Hon. P. A. Martin.
    Appeal from a conviction of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory; penalty, two years imprisonment in the penitentiary. - ,
    The opinion states the ease.
    
      Mathis & Kay, for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

The indictment charges that appellant in justice precinct No. 4, followed the occupation of selling intoxicants while local option was in éffect, in this: that on or about the 10th day of July, 1912, and anterior to the presentment of the indictment, appellant, in justice precinct No. 4, Wichita County, did then and there engage in and pursue the occupation of selling intoxicating liquors in violation of said law, which law was then and there in full force and effect in said justice precinct No. 4, Wichita County, Texas, and that the said Lester, did then and there on or about the said date, to-wit: July 10th, A. D. 1912, make two different sales of intoxicating liquor, one to W. A. Gault, one to E. D. Williams, and one to W. B. Tipton and on or about the said date did make different and other sales of intoxicating liquor to divers persons, in violation of said law, whose names to the grand jurors are unlmown an,d did during the months of June and July, 1912, and anterior to the presentment and filing of this indictment, make more, at least, than two sales of intoxicating liquor in violation of said law, which was then and there in full force and effect in said justice precinct No. 4, Wichita County, Texas, against the peace and dignity of the State. The jury gave appellant two years imprisonment in the penitentiary.

It was shown by Reid that he was county clerk and was custodian of the records of the County Court and had the records with him. It was also proved that at Blectra there was a place known as “Less’ Place.” Terry testified that he had seen the defendant about there and knew the fact that whisky and beer had been sold in that place within the last twelve months. Said that he did not see appellant about the place at all at the time he bought beer; all that he knew about the place was that it was called “Less’ Cold Drinks.” That all he knew about defendant was that when he met him on the street he had been pointed out as Mr. Lester; that that was all he knew about him. Another witness testified that he had hauled a couple of barrels of something that he supposéd to be beer; these were directed to defendant; he had only been to the place twice. Tipton, one of the alleged purchasers, testified that he knew defendant, had seen him in Blectra and in the courthouse, and in jail; that these were the only times he had ever seen him; that he saw him at his place of business in Blectra which had a sign over it, “Less’ Place;” that he went in there and bought three bottles of beer, that Charlie Roberson was with him. He does not fix the time of this purchase; that ne did not buy this beer from appellant, but bought it from another man who waited on them and received the money; that he saw appellant sitting over against the wall at the time indicated, but did not see him do anything. Roberson testified that he was up at “Less’ Place,” did not know when it was, but about six or eight weeks before he was testifying; that he and Tipton and appellant and “another big guy” were present, but he didn’t know who the “big guy” was. He says he didn’t recollect what the conversation was about but they got some beer. He and Tipton got the beer. Appellant was then present,—at the time he got the beer. They were discussing an election for constable; he did not think there was any sign in front of the place. He says “the big fellow,” whom he did not know and was a stranger to him, sold him the beer; that “Less” was sitting “honkered” down by the side of the wall close to the door during this time; that he did not know the name of the big fellow, or “guy” as he called him, and had never seen him since. Another witness, LaCroix, says he bought a bottle of beer in there but this was not from the defendant. He never saw defendant sell any beer in there. F. D. Williams testified that he was running a dray wagon. He says he “hauled one jag there;” “it was for another man; I do not know who it was got me to haul it. I carried it to Mr. Lester’s place. There was not anyone there and I just put it off there. I do not know what it was; I just hauled a barrel. It looked something like a flour barrel, or something like that; I do not know just what. ’ ’ He did not notice any labels on the barrel he was hauling. He says, “this jag I hauled, Mr. Lester never paid me for it. One of the dray-men paid me for it. ’ ’ He says he bought one pint bottle of beer from appellant. Tipton said the brand of beer he bought was Falstaff. This, he testified on recall, and that it was intoxicating. The statement of factk makes this recitation: “Plaintiff offered in evidence certified copies of orders showing that prohibition was in force in the justice precinct of Electra, Wichita County, Texas.”

The court charged the jury, among other things, in applying the law to the ease that if they found and believed from the evidence beyond a reasonable doubt, that appellant engaged in the business of selling intoxicating liquors in precinct No. 4 of Wichita County, Texas, at any time during the year 1912, anterior to the first day of August, 1912, and that if they should find beyond a reasonable doubt, that he in person, or by agent or employe or by partner, while engaged in such business, made as many as two different sales of such intoxicating liquors to persons appellant is charged to have made such sales to, within three years next before the filing of the indictment, then they would find him guilty. Appellant excepted to this charge and asked the following requested charge: “You are instructed to find a verdict of ‘not guilty’ in this case unless you find and believe from the evidence beyond a reasonable doubt that the defendant was engaged in the business of selling intoxicating liquors in justice precinct No. 4, Wichita County, Texas, at the times mentioned in the indictment; and that the defendant, while engaged in said business, sold, either in person or through some other person, as,his agent, employe, or partner, at least two different sales to one or more of the parties named in the indictment.” This was refused and the appellant excepted. He asked also a charge that before they could convict they must find that appellant followed the business mentioned and made at least two sales of intoxicating liquors, as the making of sales is defined in the main charge, within three years next proceeding the date of the filing of the indictment, “and that in this connection you cannot consider the sale shown to have been made to Williams of one pint of beer as being one of the two sales necessary to convict. ’ ’ These charges were refused.

It is contended in the motion for new trial that the judgment is erroneous and against the evidence in that it is not shown that appellant, either in person or through anyone else, made as many as two separate and different sales and that he was not shown to have had any connection with the persons whom the testimony shows made the sales, except one, and the State did not show that the persons making the sales were agents, or employes, etc., of appellant. And other attacks are made upon the sufficiency of the evidence, because it failed to prove a ease against appellant, both as to his following the business, or making the necessary sales. We are of opinion that the judgment ought to be reversed. The State did not place either Gault or E. I). Williams on the stand to testify in the case. These were two of the parties set out in the indictment as having been purchasers. There was a witness by the name of Williams offered, but this was another Williams and not E. D. Williams,—it was F. D. Williams. The witnesses did not fix the time of the sales as about that alleged in the indictment. The statement of facts, if it recites the testimony correctly, and we must be guided by that inasmuch as it is approved by the court, does not show any sale to but one of those named in the indictment, to-wit: Tipton. We are under the impression that the attack on the court’s charge which instructed the jury if they should find beyond a reasonable doubt that if appellant by agent, employe or partner, while engaged in such business, if he was so engaged, etc., was error. The evidence does not show that he was a partner of any of the parties who sold, or that he ever had any connection with the men who sold the stuff to Tipton, the only man alleged in the indictment, who purchased at the place mentioned. This charge is too indefinite. A clearer charge should have been given on the doctrine of principals, if appellant was to be held a principal. He might have made one sale in the place himself, without carrying on the business, or being in any way connected with the ownership of it and even if he was aiding or abetting the owner of the place to sell, one sale would not be sufficient.

It is also contended that it was not shown that local option or prohibition was in effect, and especially for three years prior to the filing of the indictment. It may be that appellant was guilty, but the record ought to be clearer showing his guilt and his connection with the matter and it ought to be clearer that the local option law was in effect. The mere fact that the State offered in evidence certified copies of the orders showing local option in effect is not sufficient under all the authorities in this State, so far as we are aware. It must be shown that the local option law was in effect at the time of the alleged offense. The mere statement that the evidence was offered is not sufficient to show that it was introduced. The authorities are singularly in harmony on this proposition. Many bills of exceptions have been held insufficient by this court because they failed to state that the evidence offered was in fact introduced in evidence. See Burke v. State, 25 Texas Crim. App., 172; Jackson v. State, 28 Texas Crim. App., 143; Wilson v. State, 32 Texas Crim. Rep., 22; Thompson v. State, 33 Texas Crim. Rep. 17; Rodgers v. State, 34 Texas Crim. Rep., 612; Isaacs v. State, 36 Texas Crim. Rep., 505; Stroube v. State, 40 Texas Crim. Rep., 581; Hutcherson v. State, 35 S. W. Rep., 375; Lyon v. State, 61 S. W. Rep., 126; Moseley v. State, 43 Texas Crim. Rep., 559; Jacobs v. State, 28 Texas Crim. App., 79; Smith v. State, 32 S. W. Rep., 696. In making up a statement of facts it should be made to show, if the evidence was introduced, that it was introduced. The offer of testimony is one thing and the introduction of testimony is quite a different thing.

This judgment is ordered to be reversed and the cause remanded.

Reversed and remanded.  