Byrd v. State

• Decision Date: 13 November 1912
• Citation: 151 S.W. 1068
• Parties: BYRD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1068

151 S.W. 1068

BYRD v. STATE.

Court of Criminal Appeals of Texas.

November 13, 1912.

Rehearing Denied December 18, 1912.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

John Byrd was convicted of crime, and he appeals. Affirmed.

Harrison & Wayman, of Brownwood, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of pursuing the occupation of selling intoxicating liquors in local option territory, and his punishment assessed at 2½ years' confinement in the penitentiary.

Appellant moved to transfer this case to the county court. This was decided adversely to the contention of appellant in the cases of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127.

The indictment is also assailed, but we do not deem it necessary to discuss all the grounds; they having been passed on so often by this court. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127; Slack v. State, 61 Tex. Cr. R. 362, 136 S. W. 1073; Dozier v. State, 62 Tex. Cr. R. 258, 137 S. W. 679, and cases cited. However, appellant assigns, as an additional ground to those heretofore passed on, the ground that, as the indictment charged that the offense took place on or about the 5th day of October, 1910, and the law under which he was prosecuted only became effective July 10, 1909, that the indictment is invalid, because it did not contain the words "and subsequent to the passage of the law." As the date of the offense is alleged 15 months after the law became effective, no such allegation was necessary. Indictments can only be quashed for defects apparent on the face thereof, and, as the offense is alleged to have been committed subsequent to the passage of the law, it was good on its face. The authorities cited by appellant do not sustain his contention. In Alabama, from which state a number of cases are cited by appellant, it is not necessary to allege the date of the offense unless it is a material ingredient of the offense, and in that state, on an indictment in which no date was alleged, it was held that a date ought to be alleged, or the indictment make it manifest that the act was committed subsequent to the passage of the law. In this case a date is alleged, and the indictment charges the offense to have been committed subsequent to the passage of the law.

In the case of Hodnett v. State, 66 Miss. 26, 5 South. 518, a Mississippi case cited by appellant, the date alleged as the date of the commission of the offense was prior to the passage of the law, consequently for this defect the indictment was declared invalid. In that case it was held the indictment must allege the offense to have been committed subsequent to the passage of the law. This indictment does so charge. In the case of State v. Massey, 97 N. C. 465, 2 S. E. 445, a North Carolina case cited by appellant, the law as amended became effective February 16th, and thereafter, on April 1st, the pleader in the indictment did not allege the elements of the offense as defined by the amended act, and, the indictment having alleged the offense as subsequent to the passage of the act, the court held the indictment bad because it failed to allege the elements of the offense at the alleged date of the commission thereof. As hereinbefore stated, none of the cases cited by appellant sustain his contention, but all the authorities hold the indictment valid, drawn as in this case on that issue.

Appellant further contends that, as the indictment alleges "that on or about the 5th day of October, 1910, the appellant did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquor in violation of law, and did, on a given date, make a sale to one man, and on a different date make a sale to another man," etc., and that during the months of June, July, August, September, October, November, and December, 1910, and January, February, March, and April, 1911 (all being anterior to the filing of the indictment), did make sales to persons to the grand jury unknown," it is defective in that it did not contain an additional allegation that during all that time appellant continued to engage in and pursue the business and occupation. Having alleged that appellant on a given date pursued the business or occupation, this allegation would admit proof that appellant was engaged in such occupation within any time prior to the presentment of the indictment within the period of limitation, or, in this instance, subsequent to the enactment of the law, covering the months charged in the indictment. Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160. The offense denounced by this statute is the pursuing of a business or occupation, not the making of a sale, but evidence that sales have been made is admissible as proof going to show that one is engaged in the business, and the state having alleged that he was pursuing the occupation and business, and adduced proof as to sales over a period of time as tending to show that he was so engaged, if the state should attempt a second prosecution covering the same period of time, a plea of former conviction would necessarily be sustained; but, having once made a proper allegation that he was pursuing the business and occupation, it was not necessary to repeat such allegation each time a sale was alleged to have been made, as the allegation that "he on or about a given date" covered and admitted proof over a period prior to the filing of the indictment generally for the full period at which the law has fixed a limitation as a bar, but in this instance from and after the law became effective until the filing of the indictment herein, and the court so limited the testimony. Subdivision 6 of article 439, Code of Criminal Procedure; State v. White, 41 Tex. 64; Wharton's Precedents of Indictments and Pleas, 9. The indictment in this case follows the forms in this respect as laid down in White's Annotated Penal Code, §§ 156, 158, 159, 160, 162, and 163, and which have been frequently approved by this court. Our Code provides that the certainty required in an indictment is only such as will enable the defendant to plead the judgment that may be given upon it in bar of any prosecution for the same offense, and this conviction would bar any further prosecution of appellant for the offense charged, under the evidence adduced, from and after the law became effective until the date of the filing of the indictment herein.

The indictment in this case charges appellant with pursuing the business or occupation of selling intoxicating liquors, and is a distinct offense from making a sale of intoxicating liquors, and is a felony in this state, and the court did not err in so holding. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040.

The appellant filed a motion requiring the state to indorse on the indictment the names of all its witnesses. The court overruled the motion and, in approving the bill, states the indictment contained the following indorsement: "Found on the testimony of Ed Blevins: Names of witnesses: Ed Blevins, A. N. Davenport, Elmer Jones, Tom Ward, T. B. Speed, Dan Harris, T. A. Morrison, L. L. White, C. C. Lockwood"—and the court states these were all of the main witnesses. As thus qualified, the bill presents no error. Section 327, White's Ann. Proc., and authorities cited.

In two of the bills defendant complains of being required to exhaust peremptory challenges on two jurors, S. F. Haynes and W. G. Churchill. As to the juror Churchill, he did not serve on the jury, was not challenged by defendant, but was challenged by the state. As defendant did not exhaust any challenge on that juror, and he did not serve on the jury, he has no ground for complaint. The juror Haynes answered that he had an opinion formed from hearsay, but such an opinion would not influence his verdict; that he had talked with none of the witnesses. This juror was challenged both by the state and defendant, and did not serve on the jury. The court did not err in his ruling. Subdivision 13 of article 673. In addition to this, it is not shown that any objectionable juror served in the case.

In another bill it is shown that defendant objected to certain remarks of the district attorney, and the court at once reprimanded that official and orally instructed the jury not to consider such remarks, and in addition to this he gave the charges requested by defendant in this respect, and, under such circumstances, the remarks were not of that nature that would call for a reversal of the case.

There are a number of bills of exception objecting to the court permitting witnesses to testify to sales of whisky on dates other than the date named in the indictment. The indictment charged that appellant pursued the business or occupation on or about the 5th day of October, and each sale testified to was a circumstance tending to show that appellant was engaged in that business. As we discussed this question in passing on the sufficiency of the indictment, we do not deem it necessary to do so again.

In another bill it is shown that a witness for the state was asked his age. The age of the witness could not be material in this case, and the fact that he stated his age presents no error.

The record in this case discloses that appellant from on and after June 9, 1911, signed for and had consigned to him the following shipments of intoxicating liquor:

                June  9.  One cask of beer, weight 250 pounds
                June 22.  Two boxes of liquor, weight 110
                           pounds
                June 29.  One cask of beer, weight 250 pounds
                June 30.  One box of liquor, weight 50 pounds
                July  8.  Two boxes of liquor, weight 100
                           pounds
                July 11.  Two boxes of liquor, weight 100
                           pounds.
                July 15.  Box of liquor, weight 70 pounds.
                July 25.  Two boxes of liquor,

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