
    MEYER v. STATE.
    (No. 10314.)
    Court of Criminal Appeals of Texas.
    May 25, 1927.
    Rehearing Denied Nov. 9, 1927.
    1. Indictment and information <&wkey;>138—Overrul-ing oral motion to quash indictment for duplicity held not error (Code Cr. Proc. 1925, arts. 513, 522, 523).
    Where defendant’s motion to quash indictment for duplicity was oral, trial court, under Code Cr. Proc. 1925, arts. 513, 522, 523, did not err in overruling it.
    2. Criminal law &wkey;sl 141 (2)— Presumption is in favor of trial court’s rulings, unless there is contrary showing in bill of exceptions.
    On appeal, presumption of law is in favor of trial court’s rulings, unless there is contrary showing in bill of exceptions.
    3. Indictment and information &wkey;?l39—Motion to quash indictment for duplicity after conclusion of evidence held too late for consideration.
    Motion to quash indictment for duplicity and because count thereof for delivering intoxicating liquor used word “deliver” only and failed to state manner and character thereof or nature of act state would rely on, made after evidence was concluded and before jury was charged, came too late for consideration.
    4. Indictment and information <&wkey;>l39 — To properly raise issue of duplicity of indictment, written motion must be presented before trial begins (Code Cr. Proc. 1925, arts. 513, 523).
    To properly raise issue of duplicity of indictment, it is necessary, under Code Or. Proc. 1925, arts. 513, 523,' to prepare and present written motion before trial begins.
    5. Intoxicating liquors <§=»2I6 — Indictment stating liquor was capable of producing intoxication to named person held not insufficient because not stating generally it was intoxicating.
    In prosecution for unlawfully delivering intoxicating liquor, indictment, stating that liquor was capable of producing intoxication to prosecuting witness, held not subject to objection raised in motion to guash that it did not state generally that it was capable of producing intoxication.
    6. Criminal law <&wkey;364(4) — Evidence that liquor delivered was used to induce witness’ intoxication to secure his signature to contract held admissible as part of res gestee.
    In prosecution for unlawfully delivering intoxicating liquor, evidence that defendant called on prosecuting witness and delivered him whisky, and, after inducing him to drink thereof, secured his signature to contract for purchase of corporation stock and his note in payment thereof, held admissible as part of the res gestas.
    7. Criminal law <&wkey;396(2) — Defendant, having brought out on cross-examination evidence of civil suit, could not complain of -evidence of check given by prosecuting witness.
    
    In prosecution for delivering whisky, where evidence that defendant induced prosecuting witness to become intoxicated by delivering whisky to him and sold him corporation stock was admitted, since defendant on cross-examination of prosecutor interrogated him as to civil suit between prosecuting witness and corporation represented by defendant, he could not complain of evidence of check given by prosecuting witness to corporation and of contract for sale of stock.
    8. Criminal law <&wkey;396(2) — Defendant, having raised issue that criminal case was to aid civil suit, could not complain of reading from docket of civil suit.
    Where evidence, in prosecution for delivering whisky, showed defendant’s use thereof was to induce prosecuting witness to become intoxicated so that defendant could sell him corporation stock and where defendant raised issue that criminal case was effort to aid civil action by prosecuting witness against corporation, he could not complain of court’s permitting clerk.to read from docket of civil suit in which prosecuting witness was plaintiff and corporation was one of defendants.
    9. Criminal law <&wkey; 1086(14) — Record, not showing that requested charges were presented before main charge was read or that exceptions were reserved presents nothing for consideration.
    In criminal prosecution, where record fails to show defendant’s special charges were presented before main charge was read or that exceptions were reserved to court’s action in refusing them, Court of Criminal Appeals-’ cannot consider the matter.
    10. Criminal law &wkey;>507( I) — Prosecuting witness is not accomplice to crime of delivering whisky because lie drank some of whisky (Pen. Code 1925, art. 670).
    In prosecution for delivering intoxicating liquor, refusal to charge law of accomplices under Pen. Code 1925, art. 670, because prosecuting witness received whisky, drank some of it, and kept remainder, held not error; such acts not making him an accomplice.
    On Motion for Rehearing.
    11. Criminal law <&wkey;III6 — Bill showing oral motion to quash indictment, reduction of motion to writing, and ruling thereon before jury was instructed, presents question of court’s ruling.
    Under bill of exceptions showing that oral motion to quash indictment was made before trial, was reduced to writing later, and order overruling it before jury had been instructed, ’question whether court erred in his ruling is presented.
    12. Indictment and information: <&wkey;>125(3l)— Indictment charging that defendant unlawfully did “deliver” intoxicating liquor capable of producing intoxication held not duplicitous (£en. Code 1925, art. 8).
    Indictment charging that defendant did unlawfully “deliver” intoxicating liquors capable of producing intoxication to named person held not duplicitous, since to deliver whisky in common parlance means physical act of transferring possession, and under Pen. Code, 1925, art. 8, words are to be taken and construed in sense they are understood in common language.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deliver— Delivery.]
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    H. L. Meyer was convicted of unlawfully delivering intoxicating' 'liquor, and be appeals.
    Affirmed.
    Audley Harris and Warren W. Moore,' both of Austin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, and the Assistant Attorney General, for the State.
   BAKER, J.

The appellant was convicted of unlawfully delivering intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The indictment, in the first connt, charges that the appellant, on or about August 27, 1925, “did then and there unlawfully áeVrner spiritous, vinous, and malt liquors capable of producing intoxication to Peter Pfluger.” In the second count of the indictment appellant-is charged with “unlawfully furmshmff spiritous, vinous, and malt liquors capable of producing intoxication to Peter Pfluger.” The conviction was upon the first count in the indictment.

It was the contention of the state that the appellant, in company with a Mr. Haley, called upon the prosecuting witness at his home in Travis county on the date alleged in the indictment and delivered to him a pint of whisky; that appellant, after inducing the prosecuting witness to drink some of the whisky, .which caused him to become so intoxicated that he was incapacitated to do business, secured his signature to a contract for the purchase of a large number of shares in the Marble Palls Textile Mills Company and his note for $1,750 in part payment thereof. The appellant defended upon the ground that' he had purchased the whisky on a doctor’s prescription for his own use in treating a severe cold, and that, while negotiating the trade with Pfluger, the latter observed the whisky and drank part of it of his own volition. Appellant introduced further testimony to .the effect that Pfluger entered into the contract and signed the note voluntarily and while in possession of all his mental faculties, and that Pfluger’s contention to the effect that he was intoxicated at the time was an afterthought.

The record contains 13 bills of exception. In bills 1, 2, 3 and 4 complaint is made to the refusal of the court to quash the indictment. It is stated in bill No. 1 that, after the jury were selected and sworn and the indictment read, but before the defendant pleaded to the indictment, his counsel made a statement in open court and in the presence of the jury, as follows:

‘ “I move to quash the indictment in this case for the reason that it is duplicitous, and states two or more offenses in one count, and because the indictment does not state any offense against the laws of the state of Texas.”

This motion was overruled by the court. If we correctly understand this bill, appellant’s counsel made an oral motion to quash the indictment. Article 513, C. C. P. 1925, states:

“All motions to set aside an indictment or information and all special pleas' and exceptions shall be in writing.”

Article 522, O. C. P. 1925, states:

“The motion to set aside an indictment ’ or information, and all exceptions, shall be heard together and decided without delay.”

Article 523, C. O. P. 1925,- states:

“The court, at its discretion, may hear and determine such motions and exceptions at any time before a trial has been entered upon, but not afterward.”

Assuming that the appellant’s motion was oral, the trial court did not err in overruling it, and the presumption of law is in favor of the ruling of the trial court unless there is a showing to the contrary in the bill of exception.

In bill No. 2 it is shown that, after the evidence was concluded and before the court charged the jury, appellant filed a motion to quash the indictment—

“because neither of said counts states an offense" against the laws of the state, and because said counts are duplicitous, and because the first count in the indictment simply uses the word ‘deliver’ and fails to state the manner and character of delivery or the nature of the act which the state will rely upon to constitute such delivery.”

This motion, had it been presented in writing before the trial began, would have raised a very serious question as to the sufficiency of the indictment, under the doctrine announced by this court in Wimberly v. State, 98 Tex. Cr. R. 152, 265 S. W. 155, but, having .been presented after the evidence was concluded and before the court charged the jury, it came too late, and the court committed no error in overruling it. In order to raise properly the issue of duplicity of an indictment, it is necessary to prepare and present a written motion before the trial begins. Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367; Wimberly v. State, 98 Tex. Cr. R. 152, 265 S. W. 155.

In bill No. 3 it appears that the appellant, before the charge of the court was given to the jury, made a motion to quash the first count of the indictment—

“because the indictment states that the liquor was capable of producing intoxication to Peter Pfluger, but does not state generally that it was capable of producing intoxication, only to Peter Pfluger.”

What we have said relative to bills 1 and 2 applies to this bill. Besides, we are of the opinion that the count objected to is not subject to this criticism. As we understand the language used in the indictment, it charges 'a delivery to Peter Pfluger of liquor capable of producing intoxication.

The motion to quash, brought forward in bill No. 4, raises the same question as that involved in bill No. 3, and consequently calls for no additional discussion.

In bills 5, 6, 7, 8, and 9 complaint is made to the introduction of evidence relative to appellant obtaining the contract from the prosecuting witness on the date of the alleged delivery of the whisky, and to the introduction in evidence of said contract, the note and all evidence pertaining thereto; it being alleged that same in no manner shed light on the offense charged against appellant in this prosecution. The qualifications attached to these bills by the trial court, without objection upon the part of appellant, state that this evidence was introduced as a part df the res gestas and to show unlawful intent. These bills, as presented, show no error.

Bills 10 and 11 complain of the action of the court in permitting the state to introduce in evidence a check for $500, given by the prosecuting witness, in July, 1925, to the Marble Ealls Textile Mills Company for purchase of stock, and to the introduction of a contract dated July 27, 1925, between the prosecuting witness and said company, calling for the purchase of a certain amount of stock, to all of which testimony the appellant objected on the ground that it was immaterial, would confuse the real issues in the case, and involve the proof of another offense. These bills are qualified by the court to the effect that he was under the impression that this testimony was brought out originally by the appellant on cross-examination of the prosecuting witness. The record discloses that the appellant, on cross-examination of the prosecuting witness, did interrogate him relative to said contract and the matters involved in these bills of exception. Under the facts of this case, these bills show no error

In bill No. 12 complaint is made to the action of the court in permitting the clerk to read from the docket of the Eifty-Third judicial district court the style of a civil suit in which the prosecuting witness was plaintiff and the Marble Ealls Textile Mills Company was one of the defendants. 'The appellant objected to this testimony because—

“it was made by third parties out of his presence and shed no light on any issue involved in the case.”

The court qualifies this bill by stating that:

“The issue was originally raised by- the defendant to the effect that the criminal case was an effort to aid a civil action against the prosecuting witness, and he offered the witness to show the pendency of suit, whereupon the state introduced all of the record, as shown by the docket, the defendant having introduced but a portion.”

We are unable to see the relevancy of this testimony, but the bill of exception, as presented, shows no error.

Bill No. 13 is a résumé of the objections urged and the matters presented in the other bills of exception, and what we have previously said is fully applicable to this bill.

The record discloses that the appellant presented eight special charges to the court, all of which were refused. However, the record fails to show that they were presented to the court before the main charge was read to the jury, or that any exceptions were reserved to the action of the court in refusing to give these special charges. Eor this reason we are precluded, under the statutes and the decisions of this court, from considering the matters therein complained of.

The appellant contends that the court committed error in refusing to charge the law applicable to accomplices, because, according to his contention, the prosecuting witness, by reason of having received the whisky, drank some of it, and kept the remainder, thereby became an accomplice witness under the law. We are not in accord with this contention. Article 670, P. O. 1925, provides:

“ * * * The purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to- be an accomplice, when a witness in any such trial.”

We also think that in Bailey v. State, 104 Tex. Cr. R. 432, 284 S. W. 574, this court held against the contention here raised by the appellant.

Finding no error in the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MARTIN, J.

It is vigorously insisted by appellant that a motion presented orally to quash an indictment because of duplicity, before trial has begun, which motion is acted on and overruled by the court and such motion is afterwards reduced to writing before the testimony is concluded and is again overruled, ought to be considered.

It appears from the record that a proper oral motion was made before a trial had been entered upon, asking that both counts of the indictment be quashed for duplicity and was overruled by the court. This motion was reduced to writing later and before the jury had been instructed and ah order was’ entered overruling same. In this state of the record we are inclined to hold that appellant is entitled to have the point reviewed. If the court had refused to entertain and hear the oral motion because not made in writing, a different question would be presented. The motion was overruled because, in the opinion of the court, the indictment was not duplicitous, and the bill, we think, presents the question under the particular circumstances of this case, of whether he erred in such ruling rather than whether he erred in making a ruling. Passing therefore upon the bill of exceptions presented, we are of the opinion that an indictment which charges that appellant “did then and there unlawfully OeTmer spiritous, vinous, and malt liquors capable of producing intoxication to Peter Pfluger,” is not duplicitous.

The court had in mind this question' in the case of Wimberly v. State, 98 Tex. Cr. R. 152, 265 S. W. 156, in using the following language:

“The single word used to describe the other offenses quoted from the statute has a legal significance sufficient to meet the requirements of the law and inform the accused of the nature of the charge against him.”

The court was discussing the statute which used the words “sell,” “barter,” “exchange,” “transport,” “export,” “deliver," and “furnish.” While suggesting that the use of the word “furnish” rendered the indictment duplicitous, it made the observation above quoted with reference to the other words.

Webster’s International Dictionary defines “deliver” as follows: “To yield possession or control of, to part with, or to make over”— while the word “furnish” under said authority has the following meaning: “To provide for, to provide, to provide what is necessary for, to forfeit or satisfy the needs of, to fit out or fit up, to supply, give, or afford.”

To deliver whisky in common parlance means the physical act of transferring possession, while to furnish whisky might mean either to sell it, give it, or deliver it; or it might mean to sell and deliver or give and deliver. The one has a fixed meaning and only one meaning as commonly understood, while the other is broad enough to include several acts, some of which have been denounced as penal. This case therefore appears to distinguish itself from the Wimberly Case, supra.

Article 8 of the Penal Code 1925, provides, in substance, that words are to be taken and construed in the sense in which they are understood in common language, and the use of the word “deliver” thus defined could not have misled appellant, and was sufficient to apprise the appellant of the specific act which he was called upon to meet.

All other questions raised we think were properly disposed of in the original opinion.

The motion for rehearing is overruled.

PEB CUBIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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