Huggins v. State

• Decision Date: 19 February 1919
• Docket Number: (No. 5195.)
• Citation: 210 S.W. 804
• Parties: HUGGINS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 804

210 S.W. 804

HUGGINS v. STATE.

(No. 5195.)

Court of Criminal Appeals of Texas.

February 19, 1919.

On Motion for Rehearing, April 16, 1919.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Frank Huggins was convicted of selling or giving intoxicating liquor to a soldier, and he appeals. Affirmed.

Weeks & Owen, of El Paso, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This conviction is for a violation of the statute which provides that it shall be unlawful for any person, directly or indirectly, to purchase for, procure for, sell, give, or deliver to any person enlisted in the military forces of the United States, any spirituous liquors capable of producing intoxication. See Acts 35th Leg. (4th called Session) c. 7.

Counsel for appellant upon the trial reserved no exceptions to the charge of the court, nor proper exceptions to special charges refused. The only special charge requested, the refusal of which is not properly reserved, was incorrect in that it directed an acquittal if the defendant bought the whisky for himself. He would, under the statute, have been guilty if he bought the whisky for himself and sold or delivered it to the soldier.

Other counsel appealing the case urge the insufficiency of the evidence, based upon the proposition that Pope, the soldier to whom the whisky was charged to have been delivered, and two officers co-operating with him, were accomplices, in that they brought about the commission of the crime, and that under the rule stated in Bush v. State, 68 Tex. Cr. R. 301, 151 S. W. 554, their testimony should be weighed by the rule applicable to accomplice testimony. In Mansfield v. State, 206 S. W. 195, we intimated in this character of prosecution the rule touching accomplice testimony would be the same as in prosecutions for violation of the local option prohibition law. The decision of that question was not necessary for a determination of the case, and inasmuch as article 602, P. C., provides a special rule in local option cases, it is doubtless correct, as held in Bush v. State, supra, that in a prosecution of the character here involved the general rule with reference to accomplice testimony would prevail. Applying that rule, however, and assuming that there was evidence upon which the jury might have concluded that Pope, Porter, and Pomeroy were accomplices, it was incumbent upon the appellant to have requested the submission of that issue to the jury, or to at least have excepted to the failure of the court to do so in his charge. An omission of this character is not fundamental error, nor one that can be raised in motion for a new trial, or on appeal, in the absence of an exception to the charge as provided by the act of the Thirty-Third Legislature, chapter 138 (Vernon's Ann. Code Cr. Proc. 1916, arts. 735, 737, 737a, 743).

Moreover there was evidence other than that to which the complaint is addressed tending to connect the appellant with the commission of the offense. The witness Gaten testified to a part of the transaction, corroborating the witness Pope and the other witnesses mentioned, and the appellant himself claimed that after Pope had asked him to obtain some liquor he bought four half pints of whisky for his own use, and put it near the stand which was used for shining shoes for a barber shop in which he worked; that Pope had previously placed in his possession three $1 bills, and that after he put the package containing the whisky in the place mentioned he saw Pope take it, and said to him, "That is my whisky," when Pope said, "Get some more while getting is good;" that the $3 would get it; that he had previously offered to...