
    OLIVER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 15, 1913.)
    1. Intoxicating Liquoes (§ 236)— Sufficiency of Evidence.
    Evidence ¡held to show sales in violation of the local option law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    2. Intoxicating Liquoes (§ 141) — Sales— “Engaging in Business.’’
    The sale of a pint of whisky on two occasions about two weeks apart would not constitute “engaging in the business” or occupation of selling intoxicants contrary to the statute.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.
    
    For other definitions, see Words and Phrases, vol. 3, p. 2394.]
    3. Intoxicating Liquoes (§ 141) — Engaging . in-Business.
    To follow the occupation of engaging in the business of selling intoxicants means accused must be engaged in that business as his principal'business, or in some way as a business proposition, and it is insufficient that he has intoxicants in his possession and makes several sporadic sales.
    [Ed'. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.]
    4. Intoxicating Liquoes (§ 141) — Offenses.
    An act passed in 1909 (Acts 31st Leg. [1st Ex. Sess.] q. 15) imposed a punishment of not more than five nor less than two years for engaging in the business or occupation of selling intoxicants in local option territory and made at least two sales in pursuance of such business, and another act, taking effect on the same day, imposed a punishment' of not less than one nor more than three years for merely selling intoxicants in local option territory. Held, that the statutes created two distinct offenses; one engaging in the business or occupation of selling intoxicants in local option territory, and the other selling intoxicants therein.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.]
    Appeal from District Court, Upsiiu'r County; R. W. Simpson, Judge.
    John Oliver was convicted of engaging in the business of selling liquor in local option county, and appeals.
    Reversed and remanded.
    Warren & Briggs, of Gilmer, for appellant. 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
    
   DAVIDSON, P. J.

Appellant was convicted of pursuing the occupation and engaging in the business of selling whisky in local option county.

The evidence is very brief and practically without conflict, to the effect that on or about the 9th of February, 1912, a witness named Wright bought of appellant 25 cents worth of whisky under the following circumstances: He says: “I met the defendant coming across the railroad in his delivery hack, which was his occupation; that is, to drive the delivery hack. He told the defendant he wanted to borrow half a pint of whisky. The defendant told him all right, and he and the defendant went to defendant’s house and drew a half pint of whisky out of a jug and put it in a half-pint bottle. I stated to the defendant at the time that I had ordered some whisky, and if my whisky came I would pay it back to him, but if he got in a hurry for the whisky before mine came, I would leave him a quarter, or 25 cents, which I did, and he could take that money and order some more whisky. About two weeks after this I met the defendant again on his delivery hack, and told him my whisky had not come, and that I wanted to borrow another half pint. He said, “All right,” and we went down to his house, and he got the whisky for me. I don’t know whether he got it out of a jug or not. Anyway, I left another quarter and told him to order him some more whisky if mine didn’t come. My whisky never did come or hasn’t come yet This is all I know about the case.” On cross-examination he says: “I did not buy any whisky from Pig or John Oliver. I just borrowed two half pints until mine come and left the money with him to order some more if I didn’t get mine in time. My whisky never did come and I never paid him back.”

The conclusion from these facts is’: Under former cases, these two. transactions ought to be regarded as sales and violative of the local option -law. A deputy sheriff named Howell also testified he. “looked through, a knot hole” in a door in what was known as a warehouse of Sheppard & Kelley, in which they sometimes stored grain and hay, and saw appellant drink out of a half-pint bottle. The witness says he went in there and got the bottle from under the floor. The brand of this whisky was “Kentucky Tavern.” He says he got some wrappers from under this floor, but only one pint of whisky. This is all the evidence this witness gave, or all he knew about the matter. This was not a sale. This particular house, known as Sheppard & Kelley’s old warehouse, was also used as a general water-closet The second pint of whisky the witness Wright got from appellant was about two weeks after the first transaction, which would throw it' approximately about the 23d of February. An express agent named Beck testified that his books showed defendant got a jug of whisky on February 29th from the. Goodman liquor Company of Waco, Tex., and the following March he got 24 pints. This is all that appellant ever received through the express office. Another witness testified that the warehouse mentioned was used a good deal as a public closet. The doors were never shut or seldom ever shut in the daytime; any one could go in and out of it whenever he desired. This is about the case, except it was agreed local option was in effect in Upshur county.

Under this state of facts, this conviction ought not to have occurred for engaging in the business of selling intoxicants. There were but two sales shown or attempted to be shown, one about the 9th of February, and the other about the 23d of February. All whisky that is shown to have been shipped to appellant was subsequent to the sales mentioned, and that amounted to a jug of whisky on the 29th of February, and 24 pints some time in March. It is also shown that appellant is a man who drank' a good deal.

The court instructed the jury, in regard to the question of what it took to constitute engaging in the business, as follows: “To constitute engaging in the business or pursuing the occupation of selling intoxicating liquor, the proof must show that the defendant kept in his possession intoxicating liquor for sale, and that he had intoxicating liquor on hand; and also that he made two sales of intoxicating liquor during the time he‘is charged with having engaged in the business or pursued the occupation, if any.” This is the only definition, as we understand, the court ■ gave. He further charged the jury that, in order to constitute a‘ violation of the statute, it must appear that the defendant engaged in the business or pursued the occupation of selling intoxicating liquors about the time charged in the indictment, and that he did about the time charged make a sale of intoxicating liquor to Albert Wright The definition, however, given is the one quoted. This is not a correct definition. A man may keep on hand any quantity of whisky or intoxicants, or have same in his possession and not be engaged in the business of selling. To follow the occupation or engage in the business of selling intoxicating liquor means that the party must be engaged in that business either as his principal business, or in some way as a business proposition. It does not mean that, because he has whisky in his possession and makes a couple of sporadic sales, that would constitute following the business. Under the statute there are two things which must occur in order to violate the statute in question. The first is, the party must engage in the business or pursue the occupation of selling intoxicating liquors in' local option territory; and, second, he must make at least two sales in pursuance of that business or occupation. This act was passed by the Legislature in 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 15), as was another statute (Acts 31st Leg. [1st Ex. Sess.] e. 35), which makes it a penitentiary violation of the law to sell intoxicants in local option territory while not pursuing the business. The two acts were passed by the same body and went into effect the same day. The Legislature was drawing or intended to draw a distinction between a violation of the local option law by making a single sale or sporadic sales, and the selling of liquor in connection with following that line of business or engaging in that 'occupation. The punishment for violating the local option law is not less than one nor more than three years, while in pursuing the business it is not less than two nor more than five years. So the Legislature intended to punish more severely the offense of pursuing the business of selling intoxicants, and it shows further that body was drawing a distinction and making different offenses of the two conditions or state of facts. It would be well enough for our trial courts to keep this distinction in mind. A man who violates the local option law by making sporadic sales is to be punished for that offense. It is only when-selling intoxicants in local option territory in pursuance of the party’s engaging in that business or following that occupation that the higher punishment is to be enforced. A man may keep any amount of intoxicants on hand, and may occasionally sell a bottle of such intoxicants, without engaging in the business. He may keep only a small amount or may order it without keeping it on hand, and sell to parties, and yet engage in the business. Wherever these questions come, the distinction between engaging in the business or following the occupation and the sale in violation of the local option law under the other statute should be kept in mind and the jury properly instructed. The facts, in this case do not justify the conviction.* There is no attempt, to . sho-sv, that, defendant!' was ,engaged in tlie business, and even under tiie court’s definition appellant bad not violated tbe statute under which he was convicted. The only possible amount of whisky, under tbe facts, that could have been used against defendant as to quantity, was 24 pints which were expressed to him in March, long after these transactions occurred; but there was no evidence offered that he was selling any of the 24 pints, or even that he ever offered it for sale.

The judgment is reversed, and the cause is remanded.  