Clay v. State
| Decision Date | 21 February 1912 |
| Citation | 144 S.W. 280 |
| Parties | CLAY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, San Augustine County; W. B. Powell, Judge.
Will Clay was convicted of crime, and he appeals. Reversed and remanded.
Foster & Davis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was indicted, tried, and convicted of the offense of pursuing the occupation of selling intoxicating liquors in territory where prohibition had been adopted; his punishment being assessed at three years in the penitentiary.
The court did not err in admitting proof of sales of intoxicating liquors to others than those named in the indictment. Appellant was being prosecuted for pursuing the occupation, and not for making a single sale; and in prosecutions for pursuing the occupation all evidence which would tend to show that he was doing so would be admissible. This court in Fitch v. State, 127 S. W. 1040, held that, when two specific sales were alleged, the persons must be named to whom the liquor was sold, but it is permissible to show that defendant was engaged in the occupation of selling. In view of the disposition of this case, it is unnecessary to discuss the assignment relating to the act of the Legislature in regard to suspension of sentence. In the case of Snodgrass v. State, 146 S. W. __,† decided at this term, this act was held unconstitutional, and the question cannot arise on another trial.
It was permissible to prove that defendant had been indicted for other felonies, but the court erred in permitting the district attorney to compel defendant to answer that he had been indicted a number of times for selling intoxicating liquors. It is only in those counties where making a single sale of intoxicating liquors is a felony that it is permissible to make this proof and then only for the purpose of affecting his credit as a witness, and, when admitted for this purpose, it should be limited to the purpose for which it was introduced in the charge of the court. In this case the court erred in admitting the testimony, and erred in failing to limit the purpose for which the testimony was admitted showing that defendant had been indicted for other felonies. When the testimony was admitted, he stated he would limit it in his charge, but failed to do so.
The defendant complains of the following paragraph of the court's charge: "If the defendant got the whisky he let Sim Worsham and Joed Eddings have from Will Garner and Joe Myers, and that he had no interest in the whisky so obtained, nor in the sale thereof, and was not acting for them or either of them, and that he received no pay or promise of any thing of value from them or either of them for getting said whisky from them, and that he received no pay or promise...
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Creech v. State
...the appellant pursued the business or occupation of selling intoxicating liquors. It is unnecessary to cite all the cases; but see Clay v. State, 144 S. W. 280; Whitehead v. State, 147 S. W. 584; Wilson v. State, 154 S. W. By another bill appellant complains of this statement made by the co......
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Jennings v. State
...S. W. 609; Hightower v. State, 73 Tex. Cr. R. 258, 165 S. W. 186; Johnson v. State, 67 Tex. Cr. R. 441, 149 S. W. 165; Clay v. State, 65 Tex. Cr. R. 402, 144 S. W. 280; Kirksey v. State, 61 Tex. Cr. R. 298, 135 S. W. 124; Hightower v. State, 60 Tex. Cr. R. 109, 131 S. W. 324; Jennings v. St......
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Misher v. State
...of beer on hand in his place of business, in an ice box. Robinson v. State, 147 S. W. 245; Dickson v. State, 146 S. W. 914; Clay v. State, 144 S. W. 280. At the request of appellant, the court instructed the jury: "Gentlemen of the jury, you are instructed as a part of the law of this case ......