
    ATKINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.
    On Motion for Rehearing, June 28, 1912.)
    1. Intoxicating Liquors (§ 212) — Wrong-pul Sale — Engaging in Business —Indictment.
    An indictment charging that defendant on or about December 18, 1911, unlawfully engaged in and pursued the occupation of selling intoxicating liquors in violation of law, after the prohibitory law bad been theretofore put in force, and that on or about that date he made two different sales of intoxicating liquors to one G., and on or about the same date made other sales to other persons to 'the grand jury unknown, and during the months of November and December of the year 1911 made more than two sales, was sufficient.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 252; Dec. Dig. § 212.]
    2.Intoxicating Liquobs (§ 236) — Wrongful Sale — Engaging in Business — Evidence.
    Evidence held to warrant a conviction of engaging in business of the sale of intoxicating liquors in a prohibition county.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3. Intoxicating Liquobs (§ 239) — Engaging in Business — Wrongful Sale — Instructions.
    An instruction that to show the engaging in or pursuing the business of selling intoxicating liquors the state must prove beyond a reasonable doubt that defendant unlawfully engaged in or pursued the occupation or business of selling intoxicating liquors in J. county at the time alleged in the indictment, and that the sales, if any, were made to G. as alleged prior to January 5, 1912, when the indictment was filed, and that defendant pursued such business as a business or calling and for profit or gain, and that at least two sales were made by him, and unless the jury so believed beyond a reasonable doubt they should acquit, properly defined the offense of engaging in or pursuing-the occupation or business of selling intoxicating liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. §§ 331-347; Dec. Dig. § 239.]
    On Motion for Rehearing.
    4. Criminal Law (§ 434) — Evidence — Books of Express Company.
    Express companies being required to keep a record of shipments of intoxicating liquors into prohibition counties, showing receipts for deliveries thereof, the books of an express company kept in compliance with such law are a quasi public record, and entries therein shown to have been made by the agent of the company, in the regular discharge of his duties, were admissible, though not proved by the person making the entries.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023; Dec. Dig. '§ 434.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    J. E. Atkinson was convicted of pursuing the occupation of selling liquor in a prohibition county, and he appeals.
    Affirmed.
    J. C. Randel, of Anson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted for pursuing the occupation or business of selling intoxicating liquor in Jones county after prohibition" had been duly put in force therein.

Appellant made a motion to quash the indictment, and in arrest of judgment, on the grounds: First, that it charged no offense against the law; second, it failed to allege that the defendant had made two sales of intoxicating liquor in said county within three years preceding the filing thereof; and, third, because the indictment did not negative the exceptions stated in the law, “except as permitted by law.”

The indictment in this case followed strictly the form laid down in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, which has always been adhered to in repeated decisions since by this court. See, also, Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073. All the questions raised by appellant in his motions have been uniformly held against him. The indictment in this case charges that the appellant on or about December 18, 1911, unlawfully engaged in and pursued the occupation of selling intoxicating liquors in violation of the law, after the prohibition law had been theretofore put into force and was then in full force and effect, and that on or about December 18, 1911, he made two different sales of intoxicating liquors to one Otho Gooch, and on or about the same day made other sales to other persons to the grand jurors unknown, and during the months of November and December, 1911, made more than two sales.

The testimony clearly shows by the records of the Wells Fargo Express Company, at Hamlin, in Jones county, and by the persons who had charge of such books and actually made the delivery of intoxicating liquors to appellant, deliveries of intoxicating liquors to him as follows: On November 4, 1911, 4 quarts; on November 11th 4 quarts, and again on the same day 6 quarts; on November 14th 4 quarts; on December 10th either 6 or 8 quarts; on December 11th 4 quarts; on December 23d 4 quarts, and on the same day another 4 quarts — making a total of 38 quarts delivered from November 4, 1911, to December 23, 1911. All of these packages of whisky were showD to have been shipped from the Oak Hall Saloon in Waco, Tex., to appellant at Hamlin, Tex., in his name, and that' they were received by him and receipted for by him on the books of said express company. The testimony as to the signature in two or three of these shipments is not made entirely clear, but is amply sufficient to show that the liquor was received by appellant. The testimony further shows that Otho Gooch purchased two quarts of whisky from appellant, one on December 5 and the other December 19, 1911, and paid him therefor; that at the time the two sales were made appellant was in an old unused and unoccupied, otherwise than by him, storehouse, fixing the locality in Hamlin, Jones county. And the testimony also showed by several persons that he was occupying this old storehouse during that time. There was no indication that any other business or work was conducted or done therein by appellant during that time.

Appellant denied making any sale to said Gooch at the time testified to by him or at any other time. He testified that at a different place and at a different time said Gooch took a quart of whisky that belonged to him without his consent, and that Gooch afterwards admitted it to him and promised to return it to him or pay for it. Gooch positively denied all of this.

The charge of the court is clear and distinct, following the law strictly, and required the jury to believe, beyond a reasonable doubt, that the appellant at or about the time charged in the indictment and prior to the filing thereof on January 5, 1912, unlawfully engaged in and pursued the occupation and business of selling intoxicating liquors, as alleged, and at any time after December 1, 1911, and prior to January 5, 1912, did make two different sales of intoxicating liquors to said Gooch, as alleged in the indictment, to find him guilty.

In one separate paragraph of the charge, the jury is told that, in order to constitute engaging in and pursuing the business of selling intoxicating liquors, it must appear that -defendant pursued such business as a business or calling and for profit or gain, and it must be shown that at least two sales were made by defendant as alleged between December 1, 1911, and January 5, 1912.

Again, in another separate paragraph, the court charged them that, to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors, it is necessary for the state to prove beyond a reasonable doubt that the defendant unlawfully engaged in or pursued the occupation or business of selling intoxicating liquors in Jones county, Tex., at the time alleged in the indictment, and that said sales, if any, were made to Otho Gooch prior to the 5th of January, 1912, which is the time of the filing of the indictment in this case, and, unless they so believed beyond a reasonable doubt, to acquit him. And also in a separate paragraph charged the reasonable doubt.

In addition to this still, the court gave to the jury appellant’s third special charge as follows: “You are further charged that, ‘in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquor, it must appear that defendant pursued such business for profit or gain.’ and it must be shown that at least two sales of intoxicating liquor had been made by the defendant. And, unless you so believe, you will acquit the defendant, and say by your verdict not guilty.”

None of the appellant’s objections to the court’s charge are well taken. Neither should the court have given any of the other special charges requested by appellant. The court’s charge defining what is meant by engaging in or pursuing the occupation or business of selling intoxicating liquors is more favorable to appellant than other charges on the same subject approved by this court. See Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 597, 136 S. W. 261; Hernandez v. State, 141 S. W. 269-273; Dickson v. State, 146 S. W. 914, recently decided.

We have carefully considered all of appellant’s complaints, and none of them present any reversible error. The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant complains that the court was not justified in stating in the original opinion that “the testimony clearly shows by the records of the Wells Fargo Express Company at Hamlin, in Jones county, and by the persons who had charge of such boohs and actually made the delivery of intoxicating liquors to appellant, deliveries of intoxicating liquors to him as follows” — then giving the dates and quantities, etc., of the liquors so shipped. Without quoting the whole testimony, we will state and quote enough of it to show that the court was entirely within the evidence in making the statement complained of.

The witness King, for the state, showed that he was the agent of said express company at Hamlin, where appellant was charged with the commission of the offense; that he was checked in there on December 27, 1911, just after all these deliveries, as shown by the book, were made to appellant. After showing that the agent is required to keep just such record as was introduced in evidence, the witness then testified: “This record shows the date of the shipment, its receipt and delivery, consignee and consignor, and what the shipment is and the amount. That record is kept in compliance with law at my station, and I have that record with me. [He exhibits record to the jury.] This book is designated as the record of shipments of intoxicating liquors received by Wells Fargo & Co. Express for delivery at the office at Hamlin, state of Texas. This record shows that on November 4, 1911, we received at our office at Hamlin one package of liquor, containing fouf quarts from the Oak Hall Saloon at Waco, Tex., addressed to J. E. Atkinson, and shows to have been delivered to J. E. Atkinson. Only, of course, the signature in this book is not plain. On the 11th of November, 1911, I find one package of liquor from Oak Hall Saloon, Waco, Tex., of four quarts, and on the same day one package from same place for six quarts, both consigned to J. E. Atkinson, at Hamlin, Tex. On the 14th of November, I find a package of four quarts of liquor from Oak Hall Saloon, Waco, to J. E. Atkinson. On December the 10th I find a package of liquor at Hamlin, from the Oak Hall Saloon, Waco, Tex., addressed to J. E. Atkinson. That was either six or eight quarts. I cannot tell exactly, but know it was either six or eight by the charges on it. On December the 11th J. E. Atkinson received from the Oak Hall Saloon at Waco, Tex., one package of liquor of four quarts. Yes; on the 10th he got six or eight quarts and on the next four quarts. Both and all of these shipments were consigned to Atkinson from the Oak Hall Saloon, at Waco, Tex. On December 23d I find one package of liquor four quarts from Oak Hall Saloon at Waco to J. E. Atkinson. On the same day, December 23d, there was another shipment of four quarts from Oak Hall Saloon to J. E. Atkinson. Yes; he received eight quarts on December 23d. My record here shows that J. E. Atkinson received 38 quarts of whisky or liquor during the months of November and December, 1911, at Hamlin, Tex. I might have overlooked one shipment.”

This shows, not only the testimony of this witness, but that the record book was presented and exhibited to the jury, and showed from the entries therein just what the.witness had testified. This book is under the law at least a quasi public record. Stephens v.'State, 139 S. W. 1146. It was not necessary to produce the agent of the express company who made the entries. The book itself was identified, no objection was made to it, and the entries having been made in the regular discharge of the agent’s duties, as shown, was all that was necessary. State v. Thompson, 74 Iowa, 119, 37 N. W. 104. Again, the witness Shirley showed that he was at work for the said express company at Hamlin during the whole of the time when these shipments of intoxicating liquors were shown to have been made to and delivered to appellant. This witness shows that he ■ delivered express packages containing liquor to appellant and that he delivered no other packages, excepting intoxicating liquors, to him. He was not sure that he made the delivery to appellant of the November 4th entry. “There were so many deliveries to him I can’t remember them all. * * * He always had to come and sign the book to get the liquor, and generally he came to the depot and carried it away himself.” This witness could not identify all of the signatures in said book as the signatures of appellant, as stated, in effect, in the original opinion, and, while the name “Atkinson” was apparently spelled differently in two or three of the signatures, this witness testified that he thought the same person signed the signatures, those spelling the name correctly, as well as those apparently incorrectly. He also showed the rules of the company about the keeping of the books, and that they were correctly kept, and that he never delivered a package of liquor to anybody except the consignee. All these entries of the books were shown to have been of intoxicating liquors from the Oak Hall Saloon in Waco, consigned to appellant at Hamlin. This witness further testified: “There never was a package that came to J. E. Atkinson from the Oak Hall Saloon at Waco, Tex., that I delivered, that I did not deliver to J. E. Atkinson in person.”

Appellant himself, among other things, admitted that he during the time indicated by said book made repeated orders of whisky as shown thereby and received such shipments, and while he claims that he ordered whisky for others and in a few instances permitted them to order whisky in his name, he stated that he could not tell which of these shipments the other men received their whisky from, and he did not know whether he got these various shipments which the express records show or not; that he never got any whisky out of the express office without signing for it, and he did not know whether all these signatures on the record were his or not, claiming that he did not see them in the book when it was exhibited to the jury.

Appellant also claimed that the evidence was insufficient to sustain the verdict. We have carefully considered the evidence, and in our opinion it is amply sufficient to sustain the verdict. It is sufficiently stated in the original opinion.

There is nothing further raised that requires notice or discussion. The motion is overruled.  