Gelber v. State

• Decision Date: 09 June 1909
• Citation: 120 S.W. 863
• Parties: GELBER v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 863

GELBER v. STATE.

Court of Criminal Appeals of Texas.

June 9, 1909.

Appeal from McLennan County Court; Tom L. McCullough, Judge.

H. Gelber was convicted of selling intoxicating liquor to a minor, and he appeals. Reversed and remanded.

Taylor & Gallagher, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged and convicted of selling and giving liquor to a minor in violation of section 19 of what is popularly known as the "Baskin-McGregor Law" (page 266, c. 138, § 19, Gen. Laws 30th Leg. 1907). By the terms of this law any dealer in intoxicants who shall knowingly give or sell or barter, etc., intoxicants to a minor shall be deemed guilty and punished as provided by that act.

The state introduced the alleged purchasing minor, Guy George, and his two brothers, Arthur and Luther, to sustain the allegations of the information. Other evidence was introduced as well. The evidence for the state took rather a wide range in regard to the sale by the defendant and different members of his family. Appellant testified in his own behalf, and introduced members of his family. Their testimony is to the effect that he did not sell intoxicants to Guy George. It is unnecessary to go into a detail of all the evidence of the different witnesses.

1. Appellant asked a special charge to the effect that if the jury should find that defendant, either in person or by some one acting for him, sold intoxicating liquor to Guy George, but if they had a reasonable doubt whether the party so making said sale or sales, if any, knew at the time that said Guy George was under 21 years of age, they should acquit. We are of opinion that under the facts of this case this charge should have been given. The facts show that the alleged purchaser had been shaving for some time; that he had been doing his own work, making contracts and hiring himself out at the machine shops, etc. In fact, we think the evidence was sufficiently cogent to present the issue of a want of knowledge on the part of appellant that the purchaser was a minor. The testimony being sufficient to suggest or raise the issue, an appropriate charge should have been given. The requested charge, we think, was timely, and there was error in refusing it.

2. Bill of exceptions No. 1 recites that the state used Luther George, brother of the alleged purchaser, as a witness, and proved by him that on the 19th day of December, 1908, at night, he was on the north side of Dutton street across from defendant's place of business and saw Guy George, his brother, drink beer in appellant's place of business, and that appellant was behind the bar at the time. The state further proved by said Luther George that about 10 minutes later he came back and entered appellant's beer saloon and saw Guy George drink a glass of beer set out to him by appellant's son, Marcus Gelber. This witness further testified on cross-examination that he did not think it was right for appellant to get his brother Guy drunk and get him to spend his money, and that that was all that he had against the appellant, and that his feelings were not good towards appellant. Appellant asked the witness if it was not true that on or about Christmas night, 1908, a few days subsequent to the 19th of December, he and his brother, Guy George, went to appellant's place of business and cursed and abused him and his family, calling them damned Jews, and further stating that they intended to clean out the whole bunch. Objection was urged by the state to this evidence that it was immaterial and irrelevant, and happened subsequent to the date of the commission of the alleged offense, and that such question was not a proper one to propound to prove animus or motive on the part of the witness in this prosecution, etc. The witness would have testified, had he been permitted to do so, that he and his brother did go to appellant's place of business or store on or about the time in question and curse and abuse him and his entire family, calling them damned Jews, and saying that he and his brother Guy intended to clean out the whole bunch. This testimony was admissible. Mason v. State, 7 Tex. App. 623; Sager v. State, 11 Tex. App. 110; Watts v. State, 18 Tex. App. 384; Bonnard v. State, 25 Tex. App. 175, 7 S. W. 862, 8 Am. St. Rep. 431; Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 808.

3. The state having proved by Guy George the transaction in question—that is, the sale on the 19th day of December—and appellant having testified in his own behalf that he had not sold any beer to Guy George on the night in question or any other time, and having proved by his son, Marcus, and his wife, and his daughter that they had not sold any beer to the witness Guy George as testified by him, appellant then placed Winfield Boggs and Ed Ray on the stand, and sought to prove by them that each of them was at defendant's place of business on a night during Christmas week, 1908, and that Guy George came there, and in the presence of the witness demanded of appellant that he sell him beer, and that appellant refused to and ordered him off the premises, and that Guy George became angry and snatched a glass of beer from the hands of the witness Boggs and ran out of the store and drank the same, and at the same time cursed and abused and villified appellant and appellant's entire family. Various objections were urged by the state, which were sustained by the court. The bill further recites in this connection that the complaint in the case was made by Arthur George, brother of Guy George, on the 2d day of January, 1909, and subsequent to the transactions sought to be proved by said witnesses. That this testimony was offered for the purpose of showing the animus of the witness Guy George, and his feelings towards the defendant and defendant's family, and for the purpose of proving or tending to prove a conspiracy on the part of the state's witnesses, the three George brothers, to have defendant...