
    FISHER v. STATE.
    (No. 4517.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Indictment and Information &wkey;»7 — Time for Trial — Special Term.
    An indictment cannot be attacked where found at a special term, because a term of court was then in session in another county in the same district.
    2. Intoxicating Liquors <&wkey;236(8) — Business of Selling — Criminal Prosecution— Sufficiency of Evidence.
    A conviction for pursuing the business of selling intoxicating liquors in prohibited territory cannot be bad alone upon the proof of two isolated sales.
    3. Criminal Law <&wkey;S29(7) — Refusal of Request Covered by Charge — Alibi.
    A special charge on the subject of alibi was properly refused, where it was fairly submitted in the main charge.
    4. Criminal Law &wkey;>814(15) — Refusal of Request — Applicability to Evidence — Accomplice’s Testimony.
    It was proper to refuse to instruct on the law of accomplice testimony as applied to a witness, whom the evidence showed was unconnected with the alleged sale of intoxicating liquors, except that he was a purchaser of it.
    5. Criminal Law <&wkey;1122(4) — Appeai—-Bill of Exceptions — Essentials — Refusal of Request.
    It is essential that a bill of exceptions specifically show testimony of witness claimed to be an accomplice, upon which subject a requested instruction was refused, and that it disclose sufficient facts to enable the court to pass upon its probable effect.
    
      ■6. Criminal Law <&wkey;736(l) — Accomplice — Jury Question — Assumption by Court.
    The court could not assume, as a matter of law, that a witness, who merely exchanged whisky and money between defendant and purchaser, was an accomplice to the sale, where the evidence left this question in doubt.
    7. Criminal Law <&wkey;1186(4) — Harmless Error-Refusal of Request.
    Where an alleged accomplice’s testimony was merely cumulative, and not essential to conviction, a reversal will not be had upon court’s failure to instruct on the subject of accomplice testimony, in view of Vernon’s Ann. Code Cr. Proe. 1916, art. 743, providing that a cause shall not be reversed, unless such error was calculated to injure defendant’s rights.
    8. Criminal Law <&wkey;444 — Admission of Evidence — Express Records.
    In a prosecution for pursuing the business of selling intoxicating liquors in prohibited territory, express records showing shipments of liquor to defendant were admissible, although the particular entry was in the handwriting of another than the witness, with whose handwriting he was familiar.
    9. Criminal Law <&wkey;1169(2) — Harmless Error — Admission of Cumulative Evidence.
    Express records being admissible in prosecution for pursuing business of selling intoxicating liquors, it was not reversible error to permit the witness to state that the books showed the entries in question; such statement being merely cumulative of the facts disclosed by the book.
    On Motion for Rehearing.
    10. Intoxicating Liquors &wkey;>249 — Business of Selling — Criminal Prosecution-Indictment.
    An indictment for pursuing the business of selling intoxicating liquors in prohibited territory must give the name of the alleged purchaser of the liquor touching the two sales essential under the statute.
    11. Intoxicating Liquors <&wkey;239(7%) — Instructions — Applicability to Evidence.
    The court’s refusal to instruct that two sales -of intoxicating liquors to the person mentioned in indictment for pursuing the business of selling intoxicating liquors must be proved is reversible error, where the indictment contained a general allegation of sales to unknown parties, since the jury might conclude that, although only one sale to the party named was proved, a sale to an unknown party would justify conviction.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Earl Fisher was convicted of pursuing the business of selling intoxicating liquors in prohibited territory, and appeals.
    Affirmed. On motion for rehearing judgment of affirmance set aside, judgment of the lower court reversed, and cause remanded.
    Harry Tom King, of Abilene, for appellant. E. B.' Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for pursuing the business of selling intoxicating liquors in prohibited territory.

The allegations in the indictment sufficiently charge the offense, and that pursuant to said business the appellant made three sales of intoxicating liquors to one Alexander. There was evidence that appellant made the sales named in the indictment as well as other sales. So far as disclosed by the facts, he had no other occupation. Each of the sales was of a particular brand of whisky put up in pint bottles, and was delivered by appellant off of his person. On other occasions he was found in possession of packages of the same character, and there was proof of numerous consignments of intoxicating liquors to him and receipt by him therefor to the express company.

The indictment is attacked on the ground that it was found at a special term of court under circumstances that are unauthorized by law, in that a term of court was in session in another county in the same district at the time this special term was held. The facts are not materially different from those passed on in Elliott’s Case, 58 Tex. Cr. R. 200, 125 S. W. 56S, and upon the authority of that case the assignment is overruled.

The charge of the court is assailed upon various groúnds, among them that a special charge should have been given advising the jury that a conviction could not be had alone upon the proof of two isolated sales. The correctness of this principle is established by the statute and its construction in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and other cases following that case. It is not applicable to this case, however, for the reason that the conviction does not rest alone .upon such proof, but rests upon that and other facts and circumstances showing that appellant was engaged in the unlawful business named. Hightower v. State, 73 Tex. Cr. R. 258, 165 S. W. 188.

The jury was told in appropriate language that appellant’s conviction must be predicated upon proof beyond a reasonable doubt of the pursuit of the business of selling intoxicating liquors, and that in connection therewith there must be proof of two sales as alleged in the indictment.

A special charge on the subject of alibi was requested, but its refusal was not error, for the reason that that issue was fairly submitted in the main charge.

The criticism of the definition of the offense contained in the main charge 'cannot be sustained, for the reason that it was practically in the same language that was approved by this court in the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 602, 136 S. W. 260; Dickson v. State, 66 Tex. Cr. R. 270, 146 S. W. 918; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 584; Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268; Atkinson v. State, 67 Tex. Cr. R. 364, 149 S. W. 115; Creech v. State, 70 Tex. Cr. R. 229, 158 S. W. 282.

There is no evidence that the witness Alexander was connected with the sale of intoxicating liquor in any way save that he was a purchaser of it, and there was no error in refusing to instruct the jury on the law of accomplice testimony as applied to him. Walker v. State, 72 S. W. 401; Mariner v. State, 47 Tex. Cr. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542.

Bill of exceptions No. 7 complains of the refusal of a special charge advising the jury that the witness Walker was an accomplice, and could not be the basis of conviction in the absence of corroboration. This bill of exceptions is not as specific as it should be, in that it fails to show what testimony the witness Walker gave, or to point it out in the statement of facts; nor does it disclose sufficient facts to enable the court to pass ufton its probable effect. These are things that have often been held essential in a bill of exceptions. Branch’s Ann. P. C. p. 131, §§ 207 to 214; Harris v. State, 64 Tex. Cr. R. 594, 144 S. W. 232; Vernon’s C. C. P. art. 743, p. 522, and cases. We have nevertheless examined the record, and it is disclosed thereby that the witness Walker testified as follows;

“I bought whisky from him in the back alley, behind J. Sides Confectionery; back on the west side. That is back of J. Sides’ store. Me and a white fellow were back in the alley there, and Earl come up about that time, and the white fellow says to me, ‘Have you got any whisky?’ the white fellow asked me about the whisky, and Earl came up, and I asked Earl if he had anything, and he says, ‘Ves,’ and the white fellows says— He just gave me $1.25, and I gave it to Earl. I got the whisky from Earl. Earl had the whisky with him right there. Ho handed the whisky to me, and I handed it to the white man. The white man was standing there in front, and he handed me the $1.25, and I gave it to Earl.”

We do not think that the court was authorized to assume, as a matter of law, that Walker was an accomplice. The evidence leaves this question in doubt, and if the court had been requested to submit the matter to the jury to determine whether he was an accomplice or not, a different and perhaps a serious question would have been presented. Wilkerson v. State, 57 S. W. 956; Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21; Brown v. State, 58 Tex. Cr. R. 336, 125 S. W. 915; Vernon’s C. C. P. art. 801, p. 736.

We will add that Walker’s testimony was not essential to a conviction. He was not one of the’ parties named in the indictment to whom specific sales were charged to have been made, and his testimony was but cumulative of other testimony in the record tending to show appellant’s pursuit of the business of selling intoxicating liquors. Under article 743, and a construction thereof, Vernon’s C. C. P. p. 502, we would not be authorized to reverse this case on account of this bill.

In bill of exceptions No. 9 complaint is made of an entry made in the express company’s record of shipments of intoxicating liquor, and also of the testimony of the agent of the express company that the express company’s books showed a delivery of whisky to the appellant on January 3, 1917. It appears that while the witness Kirk, the agent of the Wells Fargo and Adams Express Companies, was on the stand, he testified to the fact that upon a number of occasions he had delivered shipments of whisky to appellant, and in connection with his testimony affidavits made and signed by appellant to the effect that the liquor was not to be used or sold in violation of law were introduced. These cover various transactions during November and December, 1916, and January, 1917. One of these receipts bore date January 3,1916. Kirk testified that the receipt of the last-named date was incorrectly dated; that it should have been January 3, 1917. We understand from the testimony that the express company’s book showing a delivery of four quarts of whisky to have been made to appellant on January 3, 1917, was before the jury and proved up by Kirk as the book kept by the express company, and that this particular entry was in the handwriting of another agent of the company with whose handwriting the witness was familiar; and in connection with this he testified that the books showed the delivery of four quarts of whisky to appellant on the date mentioned. The admissibility of the express book was passed upon affirmatively by this court in Stephens v. State, 63 Tex. Cr. R. 382, 139 S. W. 1141, and in Atkinson v. State, 67 Tex. Cr. R. 364, 149 S. W. 114.

The book showing the entry being admissible and in evidence, there could be no reversible error in permitting the witness to state that the books showed this entry. His statement would be but cumulative of the fact disclosed by the book, of which fact the jury was informed by the book itself. This shipment was but one of a number of others received by appellant according to the undisputed evidence about the same time.

We have carefully reviewed the entire record, and find no reversible error ^ disclosed thereby, and therefore order the judgment of the lower court affirmed.

On Motion for Rehearing.

The indictment charged the pursuit of the occupation and business of selling intoxicating liquors in violation of law, and charged, as was required by the statute, that pursuant thereto appellant made two sales to H. H. Alexander, and added the following;

“The said Earl Fisher did make other and different sales of intoxicating liquors in violation of said law to persons whose names -are to the grand jurors unknown, and did then and there in the county of Taylor and state of Texas, during the months of November and December, 1916, and the month of January, 1917, and anterior to the presentment of this indictment, make more, at least, than two different sales of intoxicating liquors, in violation of said law, to some person (Sr persons to the grand jurors unknown.”

In its charge the court submitted the matter to the jury as follows:

“Now, if you believe from the evidence beyond a reasonable doubt that at the time alleged in the indictment local option was in force and effect in said Taylor county, and that the sale ’of intoxicating liquors was prohibited by law in Taylor county, Tex., if such were the case, and that the defendant on or about the 9th day of January, A. D. 1917, did, in the county, of Taylor and state of Texas, engage in and pursue the occupation and business of selling intoxicating liquors in said Taylor county, Tex., if he did do so, and that in pursuance thereof the said defendant, within three years next preceding the 15th day of February, A. 30. 1917, did make as many as two sales of intoxicating liquor in said Taylor county, Tex., if he did do so, as charged in the indictment, then you will find the defendant guilty of unlawfully engaging in and pursuing the occupation and business or selling intoxicating liquor in territory within which the sale of intoxicating liquor is prohibited, by law, and assess his punishment at confinement in the state penitentiary not less than two and not more than five years, as in your discretion you will determine, and so state in your verdict. Unless you should so believe from the evidence beyond a reasonable doubt, you will acquit the defendant.”

It was held by this court in Pitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, that an indictment under this statute was required to give the name of'the alleged purchaser of the intoxicating liquor touching two sales designated as essential in the statute. This holding has been uniformly adhered to, notably in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 584, and numerous other decisions.

The appellant excepted to the charge quoted above, upon the ground that it failed to require the jury, as a predicate for conviction, to determine from the evidence that two sales of intoxicating liquor had been made to the person designated in the indictment as the purchaser; and by it the jury was authorized to convict the appellant without finding the specific sales named in the indictment were made. Appellant also requested a special charge advising the- jury that there could be no conviction unless they found from the evidence that two sales of intoxicating liquor, as charged in the indictment, had been made to H. H. Alexander. There w;as evidence that the sales were made to H. H. Alexander as alleged. There was also evidence that appellant made a sale of intoxicating liquor to a witness by the name of Walker. Appellant insists that in this condition of the record harmful error was committed by the failure to give the jury a clearer understanding that appellant’s conviction could only be sustained in the event of a finding that he made two sales to Alexander, and that a finding that one sale was made to Alexander and one sale was made to Walker would not authorize a conviction, because Walker was not named in the indictment as a purchaser. In writing the original opinion our impression was that appellant’s rights in this respect had been protected by the paragraph of the charge quoted, which ad-vised the jury that two sales as charged in the indictment were requisite. In reaching this conclusion we overlooked the fact that the indictment contained, in addition to the allegation that sales were made to Alexander, a general allegation that sales were made to unknown parties. In view of this last allegation the jury may have been misled by the charge given so as to conclude that, although only one sale to Alexander was proved, a sale to Walker, the unknown party described in the indictment, would justify a conviction. In the case of Rhodes v. State, 75 Tex. Cr. R. 659, 172 S. W. 252, exactly the same question was before the court, and Judge Harper, delivering the unanimous opinion of the court, held that reversible error was committed by the trial court in giving a charge like the one given in this case and refusing to correct it in a requested special charge in substance like the one refused by the court in this case. The Rhodes’ Case, supra, is conclusive against the state, and the original opinion, being in conflict therewith, was erroneous.

We are not to be understood as holding that in a case where the names of the purchasers are unknown and cannot be ascertained by the grand jury an indictment cannot be drawn, and the prosecution maintained for this offense by following the procedure defined by the decisions of this court construing article 456, C. C. P., and listed in Vernon’s C. C. P. under said article.

We order that the judgment aifirming this cause be set aside, and that for the error pointed out the judgment of the lower court be reversed, and the cause remanded. 
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