
    (86 Tex. Cr. R. 183)
    WALES v. STATE.
    (No. 5503.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1919.
    On Motion for Rehearing, Jan. 21, 1920.)
    1. Intoxicating liquors <&wkey;236(ll) — Evidence INSUFFICIENT TO SHOW DELIVERY OF WHISKY.
    In a prosecution for the unlawful sale or giving of' intoxicating liquor to soldiers, evidence held, insufficient,’ in view of the presumption of innocence, to sustain conviction.
    2. Criminal law <&wkey;552(3) — Degree of PROOF BY CIRCUMSTANTIAL EVIDENCE NECESSARY.
    To convict, circumstantial evidence must be sufficient to exclude every reasonable hypothesis except the guilt of defendant.
    .On Motion for Rehearing.
    3. Indictment and information <&wkey;l25(31)— Charging different ways of violating LAW PROHIBITING FURNISHING SOLDIERS LIQUOR PROPER.
    An indictment or information, conjunctively charging the various phases of the statute prohibiting the selling or giving of intoxicating liquors to soldiers, including giving, selling, procuring, and all other means, is proper.
    4. Intoxicating liquors <&wkey;158 — Law prohibiting FURNISHING TO SOLDIERS NOT VIOLATED BY INTENT OR ATTEMPT.
    The law prohibiting furnishing intoxicating liquor to soldiers does not denounce the intent to so do, or even the attempt resulting in failure, and does not go farther than to punish those who furnish intoxicants directly or indirectly to the soldier or place them where he can use them.
    5. Intoxicating liquors <&wkey;236(ll) — Defendant COULD NOT (“PROCURE” LIQUOR FROM HIMSELF FOR SOLDIER.
    Where the state showed that defendant went to his own room and got a bottle of his own whisky, but failed to show that he delivered it to a soldier, he cannot be convicted of procuring it for a soldier, since he could not “procure” it from himself.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Procure.]
    :6. Intoxicating liquors &wkey;15S — Necessity . OF DIRECT OR INDIRECT DELIVERY TO SOLDIER.
    To constitute a violation of the law against selling or giving intoxicating liquors to soldiers, there must be some sort of parting, with possession by the accused, and some sort of possession in the soldier for whom intended; the delivery being accomplished directly or indirectly.
    Appeal from District Court, Galveston County; Eobt. G. Street, Judge.
    Willie Wales was convicted of the unlawful sale or giving of intoxicating liquors to soldiers, and he appeals.
    Eeversed and remanded.
    Puller & Brady, of Galveston, for appellant.
    Charles H. Theobald, Co. Atty., of Galveston, and E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P.-J.

Appellant was indicted under the statute which prohibits the selling or giving of intoxicating liquors to soldiers, marines, and others in the Service of the United States government. The indictment is prolific in allegations, and covers apparently every clause of the statute.

The case as made by the state is through the witness Brent, who is a negro policeman or detective in the city of Galveston. He says on Market street between Twenty-Fifth or Twenty-Sixth street he saw soldiers and appellant near by. Finally one of the soldiers had a conversation with appellant. Brent became interested, and began watching their movements. The soldier and appellant separated. There were two other soldiers, or marines near by, who went around the corner of the block. The soldier who was talking • with appellant separated from him, and went to a door or an opening into a'wall at the foot of a flight of steps, and stood there. It was about 7 o’clock in the evening or little after. The electric lights had been turned on. Appellant disappeared around the corner. Brent followed him. He says, after watching him for some time, appellant obtained a ladder, and ascended to a window at the rear of one of the buildings, and went through the window, and he could see nothing further of appellant at that time. He then went back and took his station where he originally stood, and later saw appellant a few feet up this flight of steps, handing the soldier below him a bottle which he thought was a pint bottle. That it had some fluid in it of a brown color. The soldier left, and joined the other two soldiers. They proceeded down the street. He watched them until they went into a cigar and fruit stand. That appellant finally made his appearance, at the same point, and went in where they were. He followed, and noticed that one of the soldiers gave appellant a torn $2 bill. When this occurred appellant reached down to his hip pocket and .partially withdrew from it a flask of whisky. Upon seeing Brent he returned the whisky to his pocket. The soldiers went away, and Brent arrested appellant. Appellant’s testimony denied these transactions, and the fruit vender testified that he was present all the time that Brent said these matters were occurring, and that such things did not occur, either as to the money or'the conversation of the soldiers or as to the attempt of appellant to get whisky from his pocket. This is substantially the case on the main facts. In addition, however, we may state that Brent was asked what the bottle contained that he saw appellant give the soldier on the flight of steps. He said he did not know anything about it more than he just saw the bottle pass. The distance between himself and this transaction is not stated, but it was the width of the street.

Taking this case from any standpoint, there is not sufficient evidence to show that appellant let the soldier have whisky. At the fruit, stand there was no whisky passed, he may have intended, under Brent’s testimony, to let the soldier have the pint of whisky he says appellant had in his pocket. Brent prevented it if such was his purpose. The transaction on the flight of steps is not of such importance, and the testimony is not of such value as to indicate .that it was whisky, so as to justify a conviction from that viewpoint. It could have or may have been whisky, but the presumption of innocence. and reasonable doubt are in favor of defendant; and, under the rules of circumstantial evidence, it must be sufficient to exclude every reasonable hypothesis except the guilt of defendant.

■ There is quite a lot of other testimony in the case bearing upon collateral matters, the impeachment of Brent, etc., but these are not discussed.

Believing that the evidence is not sufficient to justify the conviction, the judgment will be reversed, and the cause .remanded.

On Motion for Rehearing.

The county attorney of Galveston county has moved for a rehearing and an affirmance of the judgment. His contention is that we were in error in the decision, and the basis of it as announced. His motion for rehearing is based upon the idea that appellant was convicted for procuring intoxicants for a United States service man, and not for giving or selling. The pleadings charged a violation of the' various phases of the statute, including giving, selling, procuring, and all other means. This is legitimate wheré thé statute provides a thing may be done one way or another, or in different ways. They all may be charged in the same indictment or information conjunctively.

The matter is stated in the most, general way in the opinion, and the case \yas decided, not so much upon a technical accuracy of a statement of the case in. the court below,, but from the broad proposition there was no violation of the law under any phase of it; there being nothing to show the intoxicant was delivered to the marine. As we understand this statute, it is based upon th'e -idea that a soldier or a marine should not be permitted to drink intoxicants, and that any one who furnished such intoxicants so that they could or did use it should be punished. We do not understand that the object and purpose of the statute was to" punish people unless they did so furnish, either directly or indirectly, such intoxicants to the soldier, or placed it in such position he could use it. It does not denounce and punish those who intend to convey to a marine or soldier intoxicants, or even attempted to do so and failed. The broad underlying principle, as we understand it, is that the soldier or marine must be placed in such relation and position to the intoxicants that he obtain or use it, or both. We do not think the statute ought to be construed to go farther than to punish those who place the intoxicant in such relation as- above stated. The intent of the accused is not the criterion. It is the fact or act denounced by the statute. If the county attorney is basing his proposition upon the fact that appellant procured the intoxicant, and should be punished under that clause of the statute, then it occurs to Us 'that he disproved his own case before the jury. The evidence does not support such contention, but, on the contrary, excludes the idea that appellant procured the whisky from anybody. The opinion was based upon a broader proposition than that contended by the county attorney in his motion, and really would give the state the benefit of more than it was perhaps entitled.

The testimony bearing upon the question of procuring, in its strongest light for the state, shows that appellant had a considerable amount of intoxicants in his room ; that he got from that room a small bottle of whisky, which he purposed selling to the marine; that after visiting his room and getting the bottle, either by preconcert or accidentally, he met the marine at' a cigar and fruit stand, and had the whisky with him, and for the purpose of selling or delivering it to the marine. The facts are decidedly at issue as to what did occur at the cigar stand, but, taking the state’s case in its strongest possible light, it excludes the idea that appellant had procured the whisky from anybody. The state proved it was his. whisky, obtained from his own room, and the contention was tliat lie was to sell or in some way convey the whisky to the service man. Under this statute a party cannot be charged with procuring whisky from himself for another. He had already procured and owned it. It was his property. The idea of procuring necessarily conveys and carries with it the idea that the thing procured must be gotten from some one othbr than the procurer, and under the statute charged to be violated for the purpose of conveying to the marine.

The county attorney cites us to "a lot of definitions of the word "procure” as found in the Standard Dictionary. If those definitions are to be relied upon, then they exclude the state’s case. They all carry the idea that he must get it from some one other than himself. If he already had it, he would not fall within the definition of procuring. It was his property, and the question at issue, under such circumstances, would be whether or not he was selling or giving to the marine. Where there is nothing shown but an attempt to give or sell by the accused his own whisky to the,marine or soldier, the doctrine of procuring passes out. ' It cannot apply.

We are further of opinion that, in order to bring an accused within the terms of the statute under consideration, there must be a delivery in some such way that the service man gets the intoxicants, or it is placed where he can get it, and this means to the exclusion of the control of same by the alleged seller, giver, or procurer. There must be some sort of parting with possession by the accused, and some sort of possession in the party to whom it was intended to be given or sold. This may be’ a direct transfer and placing in possession, or it may be indirect. If the intoxicant is turned over to the purchaser personally, it would be in his possession. If it was turned over to another to be delivered to him, possibly this might be held against the accused under the statute, for he had parted with possession under these circumstances, and placed it in the possession of the agent, or some one for the benefit of the receiver. But it occurs to us that the controlling idea of this statute, and the'reasoning for it, was to prevent the obtaining and use of intoxicants b$r those in the service of the United States in its army and navy, and that any act of an accused which would place the intoxicant within the power of the service man, to be used or so he could use it, might bring him within the statute.

After looking over the matter carefully, we have reached the conclusion that there 'is nothing in the contention of the county attorney, and that the case made by the state disproved the allegation on the charge of procuring.

The motion for rehearing will be overruled. 
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