
    BARNES v. STATE.
    (No. 3997.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.
    Rehearing Denied April 12, 1916.)
    1. Criminal Law <&wkey;167 — Former Jeopardy —Basis op Claim.
    Former conviction, in a court without jurisdiction, could not form the basis for a plea of former jeopardy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 304-308, 310, 311; Dec. Dig. <&wkey;>167.]
    2. Criminal Law <&wkey;202(3) — Former Jeopardy-Separate Oepenses — Violations op Liquor Laws.
    The offense of violating the local option law by making sales of liquors, and the offense of pursuing the business of selling intoxicating liquors hi prohibition territory, are separate and distinct, as defined by Pen. Code 1911, arts. 589, 597.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. <§=5202(3).]
    3. Criminal Law <&wkey;161 — Former Jeopardy —Defense.
    Under the Constitution and laws of the state, a person cannot be twice tried and convicted for the same overt act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dec. Dig. <&wkey; 161.]
    4. Criminal Law <&wkey;>589(l) — Postponement op Triai>-Fokmer Jeopardy.
    Where a prosecution is based on an act upon which defendant has already been convicted of an offense, motion to postpone trial until the conviction is finally disposed of on appeal should be granted.
    [Ed. Note. — For other caséis, see Criminal Law, Cent. Dig. § 1315; Dec. Dig. <§=5589(1).]
    5. Criminal Law <&wkey;195(l) — Former Jeopardy.
    The plea of autrefois acquit is available if the transaction is the same, and the two indictments must be sustained by the same proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent.' Dig. § 382; Dec. Dig. <§=5195(1).]
    6. Criminal Law <&wkey;369(6) — Violation op Local Option Law — Evidence—Repeated Sales op Liquor.
    In a prosecution for violating the local option law by making a sale of liquor, the state cannot show that, in addition to making a sale to one witness, defendant also sold a number of times to others.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. <§=5 369(6).]
    
      7. Intoxicating Liquors <&wkey;236(8) — Offenses — Pursuing Business — Proof.
    In a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, proof that defendant made only a single sale to a -witness and sold to no other person or persons, will not support conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 310; Dec. Dig. &wkey;> 236(8).]
    8. Criminal Law &wkey;>202(3) — Former Jeopardy — Identity of Offenses — Statutes.
    Defendant, convicted in the county court for violating the local option law by making a sale of liquor, an offense denounced by Pen. Code 1911, art. 597, can be subsequently convicted of engaging in the business of selling intoxicating liquor in prohibition territory, an offense denounced by article 589, the offenses being distinct, the one consisting in making an illegal sale of liquor, the other of engaging in the business of selling, though the second prosecution involves introduction of evidence of the sale for which he has been convicted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. <&wkey;>202(3).j
    Appeal from District Court, Young County; F. O. McKinsey, Judge.
    Cleve Barnes was convicted for pursuing the business of selling intoxicating liquors in prohibition territory, and. he appeals.
    Affirmed.
    Brooks & Worsham, of Dallas, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER', J.

Appellant was convicted of pursuing the business of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

This is the third appeal in this case, the opinions on the former appeals being reported in 74 Tex. Cr. R. 501, 168 S. W. 858, and 174 S. W. 1051.

While there are four hills of exception in the record, they all relate to one question, and present but one proposition of law. The indictment in this ease charges appellant with pursuing the occupation of selling intoxicating liquors, in proper language and then alleges that, while pursuing such business—

“the said Cleve Barnes did then and there, on or about the said date, to wit, the 30th day of December, 1913, make one sale of intoxicating liquor to one Gran Glenn, and that on or about the 19th day of December, A. D. 1913, the said Cleve Barnes, in said county and state aforesaid, did then and there make a sale of intoxicating liquor to the said Gran Glenn, and did thereafter make another sale of intoxicating liquor to the said Gran Glenn in said county and state, on or about the 29th day of December, 1913; that, as aforesaid, the said Cleve Barnes made three distinct sales of intoxicating liquor to said Gran Glenn, in said county and state; that the said Cleve Barnes did then and there, in Young county, Tex., on or about the 30th day of December, 1913, make one sale of intoxicating liquor to one Seth Mabry, and did, on or about the 31st day of December, 1913, in said county and state, make another sale of intoxicating liquor to the said Seth Mabry, and that on various other dates during the months of December, November, and October of the year 1913, the said Cleve Barnes did then and there make various and divers ■ other sales of intoxicating liquor to the said Seth Mabry, and that the said Cleve Barnes did then and there, in the county and state aforesaid, and on or about the aforesaid mentioned dates, make as many as 15 sales of intoxicating liquor to the said Seth Mabry; that the said Cleve Barnes, did then and there, in said county and state, on or about the 25th day of December, 1913, make a sale of intoxicating liquor to one O. W. McBrayer, and that thereafter, on or about the 1st day of January, 1914, the said Cleve Barnes, in said county and state aforesaid, did then and there make another sale of intoxicating liquor to the said O. W. McBrayer; that the said Cleve Barnes did then and there, on or about the 23d day of December, 1913, in the county and state aforesaid, make one sale of intoxicating liquor to one Frank Gallaher; that the said Cleve Barnes, in said county and state aforesaid, on or about the 15th day of October, 1913, did then and there make one sale of intoxicating liquor to N. A. Copeland; that the said Cleve Barnes, in said county and state aforesaid, did then and there, during the month of November, A. D. 1913, make various and divers sales of intoxicating liquor to the said N. A. Copeland, and did then and there, on the various mentioned dates aforesaid, in said county and state, make as many as 10 distinct sales of intoxicating liquor to the said N. A. Copeland ; that on or about the 14th day of February, 1914, in the county and state aforesaid, the said Cleve Bames did then and there make one sale of intoxicating liquor to E. P. Stovall; that on or about the 14th day of February, A. D. 1914, in the county of Young and state of Texas, the said Cleve Barnes did then and there make two sales of intoxicating liquor to one Harvey Taylor; that the said Cleve Barnes, in the county of Young and state of Texas, and during the month of January and February, A. D. 1914, and during the months of October, November, and December, A. D. 1913, and anterior to the presentment of this indictment, and within three years next prior to the filing of this indictment, make many and divers sales of intoxicating liquor to divers persons, whose names to the grand jury are unknown,” etc.

At the same term of court the grand jury also returned indictments against appellant for making single sales to Gran Glenn and to Seth Mabry, and the county attorney later filed an information and complaint, charging that appellant had made a single sale to Harvey Taylor. By the .plea on file, and the bills, it is shown that appellant had been tried in the county on those indictments and information, and convicted of making single sales of intoxicating liquor to Gran Glenn, Seth Mabry, and Harvey Taylor, from which judgments of conviction appellant prosecuted an appeal to this court Later, when this case was called for trial in the district court, appellant entered a plea, asking a continuance of this case until those cases were heard and passed on by this court, contending that if those judgments were affirmed, it would be a bar to introducing evidence of sales to said Gran Glenn, Seth Mabry, and Harvey Taylor, upon which those prosecutions were based in support of the prosecution of appellant for pursuing the occupation. This plea was overruled, and evidence of all sales made to Gran Glenn, Setli Mabry, and Harvey Taylor was admitted in evidence on tbis prosecution, as well as proof of sales to E. P. Stovall, Frank Gallaher, and Henry Wilson. As hereinbe-fore stated, he was convicted in this cause, and on the day of submission of this cause there was also submitted the three cases in which he had been convicted in the county court. So we have all the records before us.

Tike cases in which appellant was charged and convicted of making single sales to Gran Glenn and Seth Mabry will be this day reversed and remanded, for reasons stated in those opinions, but the case from the county court in which he was charged with making a single sale to Harvey Taylor will be affirmed, as shown by the opinion in that case this day handed down. As to the cases of single sales to Gran Glenn and Seth Mab-ry, they, of necessity, pass out of this case, as they are reversed on the ground that on the face of the indictments the county court had no jurisdiction, and the judgments are void. In the cases of Ogle v. State, 43 Tex. Cr. R. 219, 63 S. W. 1009, 96 Am. St. Rep. 860, McLain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365, Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471, McNeil v. State, 29 Tex. App. 48, 14 S. W. 393, and Gibson v. State, 47 Tex. Cr. R. 489, 83 S. W. 1119, it was held, if former conviction was in a court without jurisdiction, it cannot form the basis for a legal plea of former jeopardy, and as the plea filed copies those indictments, and they show that under the allegations there was no jurisdiction in the county court. Head v. State, 64 Tex. Cr. R. 112, 141 S. W. 536. In the cases of Alexander v. State, 53 Tex. Cr. R. 504, 111 S. W. 145, and 53 Tex. Cr. R. 555, 110 S. W. 918, and Piper v. State, 53 Tex. Cr. R. 485, 110 S. W. 898, and 53 Tex. Cr. R. 550, 110 S. W. 899, it was held that, even in a case where the plea of former jeopardy was improperly overruled, and both cases were before this court on appeal, the court would consider both records, and affirm one and reverse the other.

So the sole question left in this case is, Does the fact that appellant was convicted in the county court for violating the local option law in making a sale to Harvey Taylor render the testimony of Harvey Taylor inadmissible when appellant was being tried, not for violating the local option law by making sales of liquor, but for pursuing the business of selling intoxicating liquor in prohibition territory? They are separate and distinct offenses as defined by our Code, articles 589, 597, P. O.; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Oliver v. State, 152 S. W. 1066; Byrd v. State, 151 S. W. 1068. In the case of Thomas v. State, 147 S. W. 262, this court held, speaking through Judge Davidson:

“The distinction has been drawn in the decisions by this court, as is recognized by the statute, that there is a wide distinction between the sale of intoxicating liquors in prohibited territory and the following of the occupation or pursuing the business of selling such liquors. In the Fitch Case [58 Tex. Cr. R. 366, 127 S. W. 1040], it is said, ‘It is not debatable that the business is not the same.’ ”

Wte agree with appellant, as contended in his brief, under the Constitution and laws of this state a man:

(1) “Cannot he twice tried and convicted of the same overt act”; (2) “if the prosecution is based on the same act upon which the defendant has been convicted, motion to postpone until that case is finally disposed of on appeal should be granted;” and (3) “autrefois acquit is available if transaction is the same and the two indictments must be sustained by the same proof.”

Agreeing with appellant on these propositions of law, we see no necessity to cite the authorities he quotes, nor to discuss them; it is their applicability to the facts in this case we do not agree to.

Suppose when appellant was being tried in the county court the state had offered to prove that, in addition to making a sale to Harvey Taylor, he had also bought from Gran Glenn whisky on three separate and distinct occasions, as testified to by Glenn on this trial, and had offered to prove by E. P. Stovall that he had bought whisky from appellant, by Frank Gallaher that he bought whisky from him; by Henry Wilson that he had bought whisky from him, and by Seth Mabry that on 12 or 15 different occasions he bought “some stuff from appellant, drawn out a cider barrel that smelled and tasted like it had whisky in it, paying him 20 cents drink for it,” the testimony would not have been admissible; and, if the court had admitted it, it would have resulted in a reversal of the case. Baughman v. State, 49 Tex. Cr. R. 33, 90 S. W. 166; Monroe v. State, 56 Tex. Cr. R. 445, 120 S. W. 479; Belt v. State, 47 Tex. Cr. R. 83, 78 S. W. 933; Walker v. State, 44 Tex. Cr. R. 546, 72 S. W. 861; Curtis v. State, 52 Tex. Cr. R. 606, 108 S. W. 380.

On the trial of this case, if the state had called Harvey Taylor and proved only a single sale to him, and a sale to no other person or persons, and no other circumstance, the conviction could not stand. Floyd v. State, 147 S. W. 264; Thompson v. State, 57 Tex. Cr. R. 408, 123 S. W, 593; Thomas v. State, 147 S. W. 262; Molthrop v. State, 147 S. W. 1159; Whitehead v. State, 147 S. W. 583.

This makes it manifest that the two indictments could not be, and would not be, sustained by the same proof. In one instance it takes only one transaction; in the other there must be two or more transactions, and other facts and circumstances showing an engaging in a business or occupation, for it is for engaging in the occupation that he is on trial. So the authorities cited under appellant’s third- proposition have no application to a case of this character. The court instructed the jury in this case:

“If you believe from the evidence that the defendant made the separate and distinct sales of intoxicating liquor as testified to by the witnesses, nevertheless you cannot convict him unless you further believe that he engaged in or pursued the business or occupation of selling intoxicating liquors, as those terms have been heretofore defined; and, if you have a reasonable doubt as to this, you will acquit the defendant.”

He then defines “occupation” or “business.”

“By the terms ‘occupation’ and ‘business’ as used in this charge and in the indictment herein is meant a vocation, calling, trade, or business in which ono engages to procure a living, or to obtain wealth. It need not be a person’s only occupation or business, nor his principal business; but it is sufficient if it be shown that it was one of the pursuits by which a person endeavors to make money or procure a living.”

In the county court appellant was convicted of one overt act making a sale. He could not be convicted on such proof in this ease, and; his first proposition has no application, and, the first and third not applying to a state of facts like this, of course the second would have no application. Article 589, under which this xu'osecution was had; reads:

“If any person shall engage in or pursue the occupation or business of selling intoxicating liquors,” in any territory “in which the sale of intoxicating liquors has been or shall hereafter be prohibited, * * * he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.”

This is all of the article of the statute defining the offense of pursuing the business, and is the offense for which the punishment is prescribed — he is punished for pursuing a given occupation or business. As said by this court in Standford v. State, 16 Tex.App. 331, in discussing the occupation tax laws:

“It is not the sale of liquor that constitutes the offense. It is the engaging in the business of selling. * * * It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it even to the extent of one sale.” >

See, also, Williams v. State, 23 Tex.App. 499, 5 S. W. 136; McReynolds v. State, 26 Tex.App. 374, 9 S. W. 617; Love v. State, 31 Tex. Cr. R. 470, 20 S. W. 978.

A question may be then asked, Why is it that at least two sales must be proven, in addition to proving one had engaged in the business, before a conviction would be authorized under this provision of the Code? The Legislature, knowing the above rule of law, provided in article 591:

“It shall be necessary for the state to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquors within three years”

—adding to the quantum of proof theretofore required to prove that one was engaged in a given occupation. But the sale is not the offense denounced nor punished in article 589. A person might, in three years, make a number of isolated sales, and he would not be guilty of violating this provision of the Code. Eor such acts, if prosecuted at all, prosecutions would only lie under article 597, and under this article no person can be prosecuted or convicted for pursuing the occupation.

Appellant is not punished under this indictment for making any sale, but for pursuing a given occupation or business, and he could not be punished for making a sale or sales, unless he was pursuing the business. Under the indictment in the county court he could not be punished for pursuing the occupation or business, but could only be punished for making a single sale. This question was so thoroughly discussed in Robinson v. State, 66 Tex. Cr. R. 392, 147 S. W. 245, citing the authorities, we do not deem it necessary to further discuss it.

The judgment is affirmed.

DAVIDSON, J„ absent. 
      <j&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <&wkey;>:For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     