
    CLARK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 22, 1911.)
    1. Intoxicating Liquoks (§ 236) — Criminal Prosecution — Evidence—Sufficiency.
    In a prosecution for engaging in the business of selling intoxicating liquors in a local option county, evidence held to support a conviction.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    2. Constitutional Law (§ 197) — Statutes— Constitutionality.
    Act April 15, 1909 (Acts 31st Leg. c. 15), making it a felony to pursue the occupation of selling intoxicating liquor in a local option territory, is not unconstitutional because, by virtue of the provision that the state must prove that the defendant made at least two sales of intoxicating liquor within the three years next preceding the indictment, it might be claimed that evidence of the pursuit of a person, prior to the enactment of the statute, could be introduced, for the jaw in this respect would be ineffective and inapplicable to anything committed prior to its passage.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 550; Dec. Dig. § 197.]
    3. Intoxicating Liquors (§ 19) — Constitutional Law (§§ 197, 208) — Statute—Constitutionality.
    Act April 15, 1909 (Acts 31st Leg. c. 15), making it a felony to pursue the occupation of selling intoxicating liquors in local option territory, is not unconstitutional in authorizing conviction on the proof of merely two sales, or creating a new offense in prohibition territory, where prohibition had been adopted prior to its enactment, or as class legislation, or as a retroactive law.
    [lid. Note. — For other eases, see Intoxicating Liquors, Dec. Dig. § 19 ; Constitutional Law, Cent. Dig. §§ 550, 649-677; Dec. Dig. §§ 197, 208.]
    4. Criminal Law (§ 595) — Continuance-Grounds — Materiality of Expected Evidence.
    In a prosecution for carrying on the occupation of selling intoxicating liquors in local option territory, where it was shown that accused had no regular business, a motion for a continuance because of the absence ' of witnesses, who would testify that defendant was a hard worker and constant in his efforts to secure work and had applied to them to assist him, was properly overruled, when it was not shown when defendant made these applications for work, for, if not made at the time he was charged with committing the offense, the evidence would not have been admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    5. Criminal Law (§ 595) — Continuance-Grounds — Materiality of Expected Evidence.
    In a prosecution for carrying on the occupation of selling intoxicating liquor in local option territory, where it was shown that the accused received two cases of whisky a week, a continuance for the absence of a physician who would testify that the accused’s wife was sick, and that he had advised accused to keep whisky on hand for his wife, was properly denied, as two cases of whisky a week could not be claimed to be necessary for the sick wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    6. Criminal Law (§ 598) — Continuance-Grounds — Diligence.
    In a prosecution for carrying on the business of selling intoxicating liquor in local option community, a continuance for absent witnesses will be denied where no subpoena was attached to the application, and the application fails to show when the absent witnesses were subpoenaed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 698.]
    7. Criminal Law (§§ 763, 764, 807) —Instructions.
    Under Act April 15, 1909 (Acts 31st Leg. e. 15), making it a felony to pursue the occupation of selling intoxicating liquor m local option territory, and providing that it shall be necessary for the state to prove that defendant made at least two. sales of intoxicating liquor, it being necessary that the indictment shall charge that the defendant engaged in that business and made at least two sales of intoxicating liquors giving the names, times, and places at which the sales took place, a charge, in such a prosecution, which set out those different elements naming the persons to whom the sales' were alleged to have been made, was neither argumentative or on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770, 1805, 1959, 1960; Dec. Dig. §§ 763, 764, 807.]
    8. Criminal Law <§ 829) — Trial—Instructions — Instructions Already Covered.
    Where the charge of a judge has already covered certain issues in a criminal case, further charges upon those issues are properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminal Law (§ 1172) — '“Occupation”— Harmless Error.
    Under Act April 15, 1909 (Acts 31st Log. c. 15), making it a felony to pursue the occupation of selling intoxicating liquor in local option territory, the word “occupation” does not necessarily mean principal business, but may mean a business carried on by the defendant as a side line, and hence a charge, in a prosecution under that law, that- in order to constitute and engage in or pursue the occupation of selling intoxicating liquor it is necessary for the state to prove beyond a reasonable doubt that the defendant unlawfully followed that business, places a greater burden on the state than the law requires, and was not prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3160; Dec. Dig. § 1172.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 4906-4908; vol. 8, p. 7736.]
    10. Criminal Law (§ 400) — Evidence—Secondary Evidence.
    In a prosecution under Act April 15, 190,9 (Acts 31st Leg. c. 15), making it a felony to pursue the occupation of selling intoxicating liquor in local • option territory, testimony by an express agent as to express shipments of intoxicating liquors to the accused, being from his personal knowledge and not from receipts or records in his office, was admissible, not being secondary evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 400.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Charlie Clark was convicted of engaging or pursuing the occupation or business of selling intoxicating liquors in a local option county, and appeals.
    Affirmed.
    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 eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted and convicted under the act' of April 15, 1909, p. 284, for engaging in or pursuing the occupation or business of selling intoxicating liquors in Fannin county, during the months from. March to June, 1910, inclusive, prohibition having been in force in said county continuously since 1903, and his penalty assessed at two years in the penitentiary.

The evidence establishes beyond controversy: That the appellant received, through the express company at Honey Grove in Fannin county, shipments of intoxicating liquors on an average of twice each week during the months of April and May, 1910. That it was usual for him to receive one shipment every Friday and another about the middle of the week. Each of these shipments would weigh about 50 pounds. The express agent could not tell definitely how mapy quarts were in each shipment, nor could he tell whether the shipments were usually of 12 quarts. The appellant, himself, testified and admitted that he received shipments of liquor as shown by the express agent, except that he thought the shipments were not quite so frequent. He kept this liquor about his house, and many persons were seen going to his house at night, knocking at his back door, and getting whisky from him. Also he is shown to have repeatedly filled his pockets with something, leave his house at night, and go out on the streets, shortly returning without anything in his pockets. This occurred one night in May as often as three times. That he also, at night, and occasionally in the daytime, sold liquor at different places on the streets, usually at some out of the way or private place, carrying it in his pockets. During May, 1910, he sold a pint of whisky three or four separate and •distinct times to one of the witnesses, charging and receiving $1 each time. To another witness one pint on May 28th for which he Was paid $1. To another witness four or more times about a week apart during the months of April and May and was paid $1 per pint for each pint. To another witness, -■about the same time, two pints about six Weeks apart for which he was paid $1 per ■pint. Many of these sales occurred at night; some, as . stated above, at various places on the streets in the daytime, and at night and •other times at his house where parties would go and get it at night as stated above.

It was also shown that the appellant, during these months, did some odd jobs of work -ayound. Long prior thereto he had worked fqr a year or two at a livery stable. During ¡these particular months he had no other regular business than selling intoxicating liq-npr, yet did odd jobs at various things. It is also shown by himself and other witnesses that he, at different times, applied to various persons for employment; he, himself, claiming that he worked wherever he could get a job to work. The testimony of others showed that he did not do any regular work and ohly occasionally did odd jobs. The testimony is amply sufficient and fully establishes the. appellant’s guilt.

1. The appellant made a motion to quash the indictment on the following grounds: First, because the said act under which he was prosecuted authorized the state to prove any sale made within three years prior to the filing of the indictment, when the law itself was in effect only since July, 1909; second, the said law is unconstitutional because it undertakes to punish persons for pursuing the business or occupation of selling intoxicating liquors in local option territory and authorizes the conviction on proof of two sales; third, that the law is unconstitutional, ■because it creates a new offense in prohibi.tion territory where prohibition had been .•adopted prior to the enactment of.this law; ¡'fourth, because it is class legislation and vio- ; .fates the Constitution on that ground, it be;-ing applicable to prohibition territory alone and to no other portion of the state; fifth, ubaeause it is retroactive and permits the conviction of persons for acts prior to its enactment.

Certainly the law would not be unconstitutional because it might be claimed thereunder that evidence of the pursuit of a person prior to its enactment was authorized to be introduced in evidence. The most that could be said against the law in this respect would be that it would be ineffective and inapplicable for anything that was committed prior to its enactment. This has no force, however, in this ease, because the indictment charged the commission of the offense from the time from March until June inclusive of 1910, and all of the sales that are alleged to have been made by the appellant were within that period. No evidence was offered as to anything that occurred prior to the enactment of the law.

An act is not unconstitutional nor ineffective for any of the other grounds set up in said motion. Practically all of these questions have already been decided adversely to appellant by this court. Fitch v. State, 58 Tex. Or. R. 366, 127 S. W. 1040; Mizell v. State, 128 S. W. 125; Slack v. State, 136 S. W. 1073, recently decided, but not yet officially reported.

2. Appellant made a motion for continuance on account of the absence of Russell, Sailors, and Harden, by whom he expected to show that he was a hard worker and applied to these witnesses respectively to assist him in securing work, and that he was active and constant in his efforts to secure work, and did what he could get to do, and by the witness Dr. Baldwin he expected to prove that during the time, or a portion thereof, that he is alleged to have sold intoxicating liquors, his wife was sick, and Baldwin advised him to keep whisky on hand for his wife, and that her condition required it at that time.

As to the witnesses Russell, Sailors, and Harden, even if their testimony was admissible, no time is shown by the application for continuance at which he applied to these witnesses for work and requested their assistance in securing it for him, nor the time when he expected to prove by them that he was active and constant in his efforts to secure work and did what work he could get to do. So that it cannot be told from this application whether this testimony would have been admissible or not, because it is not shown that these things occurred at the time he is charged with the offense in this case. Besides that, this testimony may probably have been more against him than for him by showing that he was not at that time — if it was the time — when the witness would have sworn that this occurred that he was engaged in any other business. And it was also amply shown by his own testimony, and others’ too, that, while he did some odd jobs during these months, he was not engaged in any other regular employment.

As to what he expected to prove by the witness Baldwin, he, himself, testified, and it was not claimed to be shown by Baldwin that it was necessary for him for two or three weeks, while his wife was sick, to get and keep for her two cases of intoxicating liquors each week, containing, as the testimony tends to show, something like 24 quarts per week.

In addition to this, no subpoena was attached to his application to show, and his application does not show, when the witnesses were subpoenaed to attend. So that his application was properly overruled on that account, if for no other.

3. Complaint is made by the appellant of the refusal of two charges requested by him, and of two paragraphs of the court’s charge on the same question.

The court gave an appropriate, full, and correct charge, applicable to the ease so far as any of the objections' are made thereto by the appellant. The two paragraphs of the court’s charge which are complained of are as follows:

“(2) If you believe from the evidence, beyond a reasonable doubt, that the defendant, Charlie Clark, did, in Fannin county, Tex., on or about the time charged in the indictment, and prior to August 18, 1910 (which is the date of the filing of the indictment herein), and subsequent to August 1, 1909, unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, as alleged in the indictment, and you further so believe that the defendant unlawfully in said county and state, at the time alleged in the indictment, did make two different sales of intoxicating liquors to one Will Bryant, and on or about the time alleged in the indictment one sale to Earnest Tatum, and did make on or about the time alleged in the indictment four different sales to John Foreman, and did during the months of April and May and June, 1910, make several different sales of intoxicating liquors to one Alonzo Shaw, then you will find the defendant guilty and assess his punishment at confinement in the state penitentiary for any term of years not less than two nor more than five; but, unless you do so believe, you will acquit the defendant.
“(3) You are further instructed that, under the law, in order to constitute or engage in or pursue the occupation or business of selling intoxicating liquors, it is necessary for the state to prove beyond a reasonable doubt that the defendant, Charlie Clark, unlawfully engaged in and followed the occupation and business of selling intoxicating liquors in Fannin county at the time alleged in the indictment, and during the months of March, April, and May and June, 1910, and that said sales, if any, must have been prior to August 18, 1910 (which is the date of the filing of the indictment herein), and unless you do so believe beyond a reasonable doubt you will acquit the defendant and say by your verdict, ‘Not guilty.’ ’!

The two charges requested by appellant which were refused are as follows:

“(1) I charge you, gentlemen of the jury, that, before you can convict the defendant in this cause, you must believe from the evidence beyond a reasonable doubt that he engaged in the business of selling intoxicating liquors, and that he followed said business as an occupation, and, unless you do so believe, you will acquit thd defendant. And, in this connection, I further charge you that, while the Ihw under which this pz*osecution is had requires the state to prove as many as two sales within three years next preceding the filing of the indictment before a conviction can be had at all, yet the proof of two sales within three years does not necessarily constitute the offense of pursuing the occupation and business of selling intoxicating liquors, as that question is one purely of fact for the jury to pass upon from all the facts and circumstances before them, and unless you do find from the evidence that the defendant did pursue the occupation and busi-_ ness of selling intoxicating liquors as charged in the indictment, and so believe beyond a reasonable doubt, you will acquit the defendant.
“(2) X charge you, gentlemen of the jury, that an occasional sale of intoxicating liquors would not necessarily be a violation of the statute under which this prosecution is had, and before you can convict the defendant in this case you must believe from the evidence beyond a reasonable .doubt that he actually engaged in the sale of intoxicating liquors and followed same as an occupation and business, and, unless you do so believe, you will acquit the defendant.”

The court refused both of these requested charges because they were embraced in the main charge which he had already given. An inspection of these charges will readily show that the court’s charge strictly follows the law, the indictment, and the evidence, and that these requested refused charges were a mere restatement substantially of the same thing, but less applicable to the facts of the case than that given by the charge of the court.

The complaint of the appellant as to the second charge of the court, above quoted, in his motion for new trial, is that it is argumentative and on the weight of the evidence, singles out and charges on the testimony of several different witnesses for the state, and makes no mention of the contradictory testimony of the defendant and his witnesses, and authorizes the conviction of the defendant if he sold the intoxicating liquors to the parties named therein, regardless of whether he followed it as his occupation or business or not, and deprived the jury of the right to determine whethei', from all the facts and circumstances, the defendant did in fact pursue the occupation or business of selling intoxicating liquors.

The statute under which this prosecution and conviction was had requires that the indictment shall charge that the defendant engaged in or pursued the occupation or business of selling intoxicating liquors in prohibition territory after prohibition had been legally adopted and was in force therein, and shall allege, and it shall be proved, that the defendant made at least two sales of intoxicating liquors within three years next preceding the filing of the indictment. This court has held in the Mizell Case and Pitch Case, above cited, and other cases, that it is necessary to follow this law and allege all of these facts and give the names, times, and places at which the respective sales took place. The charge, therefore, is not subject to the criticisms made against it. It is neither argumentative, nor on the weight of the testimony, and, while it specifies that the jury must believe beyond a reasonable doubt 'from the evidence that the sales were made to the respective parties to whom they are charged to have been made in the indictment, it does not authorize the jury to find the appellant guilty, by simply showing that he made two or more sales to these respective persons; but it requires that the jury shall believe beyond a reasonable doubt from the testimony that the appellant did engage in or pursue the occupation or business of selling intoxicating liquors, and that he also made the respective sales to the respective persons as charged in the indictment. This was strictly and properly within the law, was necessary to be charged, and was in every way proper.

What we have said about charge No. 2 is equally applicable to the complaint made against charge No. 3. It would have been improper for the court to have repeated substantially these same charges by giving the charges requested by the appellant.

4. In connection with the charge of the court in defining what is meant by “occupation” or “business” under this statute, we desire to call attention to what this court said on that subject in the case of Fitch v. State, 58 Tex. Cr. R. 381, 127 S. W. 1040. It was contended in the Fitch Case that the words “occupation” or “business,” as used in this statute under which appellant was convicted, meant the calling, trade, vocation, or business which one principally engages in to procure a living or obtain wealth, and to sustain that contention the case of Cohen v. State, 53 Tex. Cr. R. 422, 110 S. W. 66, was relied upon as authority. This court, in that case, ón this point, said: “The Cohen Case was dealing with a different subject entirely. In that case the defendant was indicted for pursuing the occupation or engaging in the business of keeping or storing spirituous, vinous, and intoxicating liquors for others in a territory where the sale of intoxicating liquors had been prohibited by law, and this court held that the definition of ‘business’ and ‘occupation’ as given by the court was too restrictive. However, this court did not hold that the proof must show that the business was his principal business. We do not think that the charge requested by appellant in this case should have been given, as the same would make it practically impossible to enforce the statute in question, and that it gives to ‘business’ and ‘occupation’ a more enlarged meaning than is contemplated by the act itself. The words ‘vocation or business which one principally engages in to procure a living or obtain wealth’ are not applicable to this kind of case. If this is the law, and must apply in cases like the one before us, it would amount to an impossibilty to ever convict a party. The statute evidently did not contemplate that such an enlarged meaning should be given to the words ‘business’ and ‘occupation.’ It was in the mind of the Legislature, evidently, to reach those Cases where a man secretly; covertly, and designedly carried on the business of selling whisky when he had opportunity. It did not require that it should be his principal business; it did not require that he should give his whole or the greater part of his time to it; but it was intended to reach cases where a man might plow all day and sell whisky at night that he had previously hid under his haystack, or that he might engage in his usual avocation during the day and have concealed at some place whisky, and that he followed the business of selling this whisky whenever the opportunity presented itself. In other words, if he had a principal occupation, and yet engaged in the sale of whisky as a side line, and secretly, the law was intended to reach him, and it was not intended to make it exclusive. While the charge requested by appellant, we think, was not the law, it was sufficient to call the attention of the court to the fact that some definition should have been given to the words ‘engaged in the business or pursuing the occupation of selling whisky.’ We think that in cases arising under this statute it is not only necessary to make out a case on the paré of the state to prove that the defendant kept in his possession whisky for sale, and that he had whisky on hand, but that he must actually make two sales before the offense is complete, and, for the reason that the court failed to charge or give to the jury any guide so that they might determine what was the business or occupation within the meaning of the act, the case will have to be reversed.”

The court’s charge in this case was much stronger against the state than was required. So the charge of the cqurt in every other respect was really much more onerous on the state than perhaps was required. The appellant was not, therefore, injured in any way on this account, because the court, by its charge, made the burden upon the state and in favor of the appellant greater than the law required.

5. The appellant objected to the testimony of Hill, the express agent, claiming that his express books showing the receipt of the shipments of intoxicating liquors to the appellant was the best evidence. The bill shows that the witness did not testify from his books at all, .but that his testimony, as shown by him, was of his own personal knowledge, independent of any books at all. There was no error in overruling the objection to this testimony.

There being no reversible error in the case, the judgment is in all things affirmed.

DAVIDSON, P. X

I dissent and will write my views generally in the Slack Case.  