
    MILLS v. STATE.
    (No. 3628.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    1. Intoxicating Liquors &wkey;>205 — Criminal Prosecution — Indicóme nt — Sufficiency.
    Where an indictment for engaging in business of selling liquor in local option territory charged that the notice of the result of the election was published the necessary four weeks in a newspaper selected in the manner required by law by the county judge of the county for such publication, and that the selection and publication were duly certified by the county judge, and the certificate entered of record in the minutes of the commissioners, the indictment sufficiently showed that the county judge ordered the publication for the necessary time in a selected newspaper.
    [Ed. Note. — Eor other eases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. &wkey;>205.]
    2. Intoxicating Liquors <&wkey;221 — Criminal Prosecution — Indictment—Sufficiency.
    An indictment for engaging in business of selling liquor in local option territory that failed to allege that the sale was not permitted by law was not void, and evidence of the commission of the offense was admissible, since it is matter of defense to be shown that the sale was permitted by law; the burden of proof being on defendant to show that he had the legal right to sell intoxicants under the statute.
    [Ed. Note. — Eor other eases, see Intoxicating Liquors, Cent. Dig. §§ 246-248; Dec. Dig. <&wkey;> 221.]
    3. Intoxicating Liquors <&wkey;230 — Criminal Prosecution — Evidence.
    Where an indictment for engaging in business of selling liquor in local option territory charged that defendant was engaged in the business and in pursuit thereof made two sales to one D.j as well as to other persons unknown, the admission of testimony of R. that he bought whisky from the defendant was proper; there being two elements of the offense — that accused was engaged in the business of selling intoxicants in prohibited territory, and that he made at least two sales.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. &wkey;>230.]
    4. Criminal Law <&wkey;368 — Prosecution—Evidence.
    In a prosecution for engaging in business of selling liquor in local option territory, where a witness was allowed to testify that he did not know who got a bottle of whisky purchased, after stating that his father and two others were present, the witness not being allowed to testify to any statement not made in the presence and hearing of defendant and not constituting a part of the res gestae of the transaction, connected with money being furnished and whisky being delivered as its result, the evidence was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815', 821; Dec. Dig. <i&wkey;368.]
    5. Intoxicating Liquors &wkey;>236 — Prosecution — Sueeiciency oe Evidence.
    In a prosecution for engaging in business of selling liquor in local option territory, evidence held sufficient to support jury’s finding of guilty.
    [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. &wkey;>236.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    J. T. Mills was convicted of selling liquor in local option territory, and he appeals.
    Affirmed.
    Will S. Payne, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment is attacked because it does not sufficiently allege the offense of engaging in the business of selling liquors in local option territory. Under the authorities since Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, the indictment is sufficient. It is also contended the indictment is insufficient because it does not show the county judge ordered the publication for the necessary four weeks in a selected newspaper. We cannot concur with this proposition. The indictment charges that it was published the necessary time in said newspaper; that it was a newspaper selected in the manner required by law by the county judge of Taylor county for the purpose of such publication; that it was published in the paper; and that the selection and publication was duly certified by the county judge, and certificate entered of record on the minutes of the commissioners’ court. We think that is sufficient allegation to cover that phase of the law.

It is also contended in a bill of exceptions that the court is wrong in permitting A. B. Dean, one of the alleged purchasers, to testify as to sales of whisky made to him by the defendant under the indictment, for the reason that said indictment is void in that it fails to allege that the sale “was not permitted by law,” which is a necessary allegation in the indictment, to make it valid; that the words, “except as permitted by law” being statutory, the contention is it must be alleged. This has been and is the opinion of the writer, and this court so held in the Keith Case, 58 Tex. Cr. R. 418, 126 S. W. 569, cited by appellant; but the Keith Case was overruled in the Slack Case subsequently decided, from which decision the writer wrote and filed a dissenting opinion. But the decisions since the Slack Case have been uniform from the majority of this court, that it is not necessary to negative the exceptions, that that is a matter of defense, and the burden of proof is on the defendant to show that he had the legal right to sell intoxicants under the statute. Dozier v. State, 62 Tex. Cr. R. 258, 137 S. W. 679; Bell v. State, 62 Tex. Cr. R. 242, 137 S. W. 670, 36 L. R, A. (N. S.) 98, Ann. Cas. 1913C, 617.

It is also contended, in another bill of • exceptions, that the court was wrong in permitting Deán to testify that there were three bottles of whisky in the transaction, whereas the evidence shows that he only bought two from appellant. Appellant excepted to the ruling of the court “in permitting the witness Dean to testify that there were three bottles, which was not the evidence; that there were only two sales tried to be shown by the state that the defendant made to the witness Dean and Russell. Further than that, the state had not shown by either witness that the defendant was engaged in the business of retail liquor dealer, unless the two sales sought to be proved constituted engaging in the business.” The indictment charges that appellant was engaged in the business, and in pursuit of that business made two sales to Dean as well as other persons to the grand jury unknown. The state introduced Russell, who testified that he bought whisky from appellant. It was not charged in the indictment that Russell bought from appellant. Appellant’s objection goes to the effect that this was not admissible. The rulings of this court are adverse to this contention. There are two things absolutely necessary to constitute this offense: First, that the accused was engaged in the business of selling intoxicants in prohibited territory; and, second, that he made at least two sales. This is statutory and necessary, of course, to be shown in order to constitute this offense. The fact that Russell was permitted to testify to a sale in connection with other facts tended to show as a circumstance that appellant was engaged in the business. Such has been the ruling of-this court.

Appellant also reserved an exception to the ruling of the court permitting Dean to testify that “he did not know who got the alleged bottle of whisky, when the evidence shows that the witness could not tell where the alleged sale of whisky went to,” after stating that his father, E. P. Dean, Bob Russell, and J. J. -Kuykendall' were present, and that any act or declaration on the part of any of the last-named persons could not bind the defendant for an alleged sale of whisky, and was prejudicial to the rights of the defendant, and was not competent testimony against him. The court qualifies this bill by stating:

“The court did not permit any statement that was not made in the presence and hearing of the defendant, and which did not constitute a part of the res gestse of the transaction, connected with money being furnished, and whisky being delivered as its result.”

With this qualification this bill shows no error. The facts, briefly stated, show that A. B. Dean and his father, E. P. Dean, came to Taylor from Jones county, reaching there Friday evening; that A. B. Dean said he was feeling badly and wanted some whisky. He went to a certain wagon yard and inquired for whisky and failed to get it. Finally appellant came, and at his request Dean furnished $2.50 and defendant gave him a bottle of whisky. The next day the Deans, Russell, and Kuykendall and appellant were together at the same place, and they secured another bottle of whisky from appellant, and later another one from Kuykendall. On Saturday evening they bought playing cards and went to appellant’s house and engaged in some sort of gambling. Dean said that he became unconscious, but waked up the next morning about 4 or 5 o’clock and found all his money gone. It is also in evidence that appellant had receipted for 12 bottles of whisky at the express office, and that Kuyken-dall had also receipted for a shipment of whisky, and on each occasion Kuykendall and appellant were together. When defendant receipted for his whisky, Kuykendall was present; and, when Kuykendall receipted for his whisky, appellant' was present. Under the decisions, there was no error in admitting the testimony about which this complaint is made, and that the evidence under these decisions will support the finding of the jury.

The judgment is affirmed. 
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