
    ELAM v. STATE.
    (No. 5772.)
    (Court of Criminal Appeals of Texas.
    April 7, 1920.)
    1. Intoxicating liquors <S=205(2) — Indictment may allege either of two elections favoring local option.
    Whore two elections had been held at different times in the same county, both of which resulted in favor of local option, an indictment for following the business of selling intoxicants in that county may allege either election.
    2. Intoxicating Tiquors <§=236(3) — 'To convict for pursuing business, two sales to named person or diligence to ascertain unknown persons must be proved.
    To sustain a conviction for pursuing the business of selling intoxicating liquors in local option territory, the proof must show at least two sales to persons named in the indictment, or must show diligence to ascertain the names of unknown parties, and an instruction allowing conviction, under an indictment charging sales to two named persons and other parties unknown, on proof of sale to one named person and to unknown persons, was erroneous.
    3. Intoxicating liquors <®=236(8) — Two sales to same person does not show pursuit of business.
    Proof of separate sales made by accused to the same individual on dates about two weeks apart is not sufficient to sustain a conviction for pursuing business of selling intoxicating liquor.
    Appeal from District Court, Kaufman' County; Joel R. Bond, Judge.
    Frankie Elam was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and she appeals.
    Reversed and remanded.
    Thos. R. Bond, of Terrell, and S. J. Osborne, of Kaufman, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The indictment alleges that local option was put into effect in Kaufman county bj< an election held in 1903, and that thereafter, in 1919, appellant followed the business of selling intoxicants in that county. It is also an admitted fact that another local option election was held in that county in 1906. Appellant’s contention is that the election of 1906 supplanted and took the place of the election of 1903, and that the indictment should have so averred. Appellant relied upon the case of Byrd v. State, 51 Tex. Cr. R. 539, 103 S. W. 863. That case supports his proposition, but the Byrd Case was overruled in Massie v. State, 52 Tex. Cr. R. 550, 107 S. W. 846, and in quite a number of cases subsequently written. See Wade v. State, 53 Tex. Cr. R. 186, 109 S. W. 191; Wade v. State, 53 Tex. Cr. R. 300, 109 S. W. 192; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. W. 936; Wade v. State, 52 Tex. Cr. R. 610, 108 S. W. 376. Those cases hold that it is immaterial which election, whether that of 1903 or Í906, is alleged and relied upon by the state in cases of this character. They both resulted favorably to local option.

The indictment alleges that appellant pursued the business and in doing so made two sales of intoxicating liquors to Frank Mc-Cormack and two sales to Raymond Robinson, one on the • 1st of June, 1919, and the other on the 1st of July, 1919, and that she made other and different sales to persons to the grand jurors unknown. The evidence discloses that Frank McCormack went to appellant’s residence on two different occasions, ' and each time obtained a pint of whisky. In the first sale, when he called for the whisky, she got the whisky and delivered it to him; but he paid Rufus Hall, who was present. His second purchase occurred about as follows: He went to the house about two weeks after the first sale and called for a pint of whisky. Appellant was taking a bath, and called a negro woman, named Helen Gladney, who got the whisky and gave it to McCormack. The evidence fails to show a sale to Raymond Robinson. He testified he went to appellant’s place to get whisky, but before it was delivered, and while he was at the house, appellant was arrested, as was, it seems, Helen Gladney and Rufus Hall. These constituted the sales proved with reference to the parties whose names are alleged in the indictment as purchasers. Helen Gladney testified that there had been sales to other parties, whose names she did not know, but if she saw the parties would recognize them. .Under her evidence she would be a principal in the transaction, in that she assisted and aided appellant, though she had no interest, it seems, in the whisky or the proceeds of sale. The testimony indicates that appellant did not own the whisky, had no interest in it, but that it belonged to Rufus Hall.

The court, in section 2 of his charge, informed the jury that it was necessary for the state to prove beyond a reasonable doubt that during the months of January, February, March, April, May, June, July, August, and September, 1919, and before the presentment of the indictment the defendant engaged in or pursued the occupation or business of selling intoxicating liquors, and that it would also be necessary to prove that while so engaged she made at least as many as two of more sales of intoxicating liquors during the time mentioned. Applying the law to the case, he instructed the jury that if, between the 1st day of January and the 30th day of September, 1919, appellant engaged in or pursued the occupation of selling intoxicating liqours, and if they should further believe that defendant, while so engaged upon the dates above mentioned, made as many as two distinct sales of intoxicating liquors to Frank McCormack, or if they should find beyond a reasonable doubt that appellant, while so engaged, made as many as two distinct sales of intoxicating liquors to persons unknown, or if they should find that appellant sold liquors to Frank McCor-mack and Raymond Robinson, they would find him guilty. Exception was reserved to these charges, and also to subdivision No; 6 of the charge.

It will be observed from these charges that the court authorized the jury to find appellant guilty if she made more than two sales to unknown parties. There are other exceptions to the charge, but this is fatal to the conviction under the authorities. A conviction cannot be had, under this character of indictment, unless the sales be shown to the parties named. The fact cannot be relied upon for conviction that sales were made to other parties not named in' the indictment. If it was thought necessary to rely upon other sales, their names should be specifically alleged, or, if not known, that fact should be alleged. It should be shown upon the trial that the grand jury used legal diligence to ascertain the names of the unknown parties. This was not done. The appellant, not only excepted to these phases of the charge, but asked special instructions which were refused. For this reason this judgment must be reversed. That the court was in error in submitting for conviction sales to unknown parties, see Fisher v. State, 81 Tex. Cr. R. 573, 197 S. W. 189; Rhodes v. State, 75 Tex. Cr. R. 659, 172 S. W. 252; Young v. State, 81 Tex. Cr. R. 656, 198 S. W. 148; Reese v. State, 82 Tex. Cr. R. 447, 199 S. W. 469.

It is contended the evidence is not sufficient. Had appellant been charged with violating the local option la,w, the evidence would have been sufficient to show two sales to McCormack. There was no sale to Raymond Robinson, as testified by himself. He Hvent to purchase the whisky, but did not obtain it. This evidence is not sufficient to show that appellant was pursuing the business of selling intoxicants. It seems that under the testimony she had no interest in the whisky, but it belonged to Rufus Hall, who lived in her house, as did the witness Helen Gladney. Rufus Hall did not testify, having been arrested, charged with the same offense. Helen Gladney did testify; but she was also charged with a violation of the law, and is an accomplice. Her testimony is the only evidence that refers to sales to unknown parties. She is not corroborated in regard to such sales. This leaves the case with two sales about two weeks apart made to the witness McCormack. Under quite a number of decisions this evidence would not be sufficient to constitute the business of selling intoxicants. See Gearhart v. State, 81 Tex. Cr. R. 540, 197 S. W. 187; Young v. State, 81 Tex. Cr. R. 656, 198 S. W. 148; Fisher v. State, 81 Tex. Cr. R. 568, 197 S. W. 189; Reese v. State, 82 Tex. Cr. R. 447, 199 S. W. 469.

The judgment is' reversed, and the cause remanded. 
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