Brann v. State

• Decision Date: 26 March 1897
• Citation: 39 S.W. 940
• Parties: BRANN v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 940

BRANN v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1897.

Appeal from Parker county court; J. L. L. McCall, Judge.

H. Brann was convicted of the illegal sale of liquor in a prohibition district, and appeals. Reversed.

Harry W. Kuteman, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of violating the local option law in precinct No. 1, Parker county, and his punishment assessed at a fine of $25 and 20 days' imprisonment in the county jail, and prosecutes this appeal.

This is a companion case to that of Myers v. State (decided at the present term of this court) 39 S. W. 938, and the facts are substantially the same as recited in that case. The object of the prosecution in this case was to connect Brann with the sale of the same jug of whisky for the sale of which Myers was convicted in the case referred to above. The only questions that require to be considered arise on the charge of the court and the refusal of the requested charges. Without analyzing the charges given, it is sufficient to say that the issues are not presented. The charge is a confused statement of principles (if not in themselves erroneous) not applicable to the facts, and some of the charges are clearly upon the weight of the testimony. For instance, the court charged the jury as follows: "If the jury further believe from the evidence that there was an agreement by and between the defendant and Myers and the witness Lafferty by which, in violation of the local option law, defendant was to send intoxicating liquor into local option precinct number one, Parker county, Texas, and sell said intoxicating liquor in said precinct, in violation of law; and the said sale was so made to state's witness Sullivan, then the jury will find the defendant guilty, and assess the punishment as above stated. Upon the question of agency, the jury are charged that the sale by one acting as agent for the defendant must appear to have been authorized by such defendant; but such agency may be presumed from the circumstances, and, when the business in which the defendant is engaged is in itself unlawful, the common authorization of agent is sufficient." If this charge has any meaning at all, it is unquestionably a charge upon the weight of the evidence, in that it instructs the jury that they may presume the agency (which in this case was of Lafferty) from circumstances. And then the charge assumes that the business in which the defendant was engaged was unlawful. This was the very fact in issue,—as to whether or not appellant was engaged in the unlawful business; that is, selling intoxicating liquor in a local option precinct. The simple question was, first, the sale of the whisky by Lafferty, in connection with Myers, at Weatherford, and the criminal connection of defendant Brann with said sale....