Hughes v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 149 S.W. 173
• Parties: HUGHES v. STATE.
• Decision Date: 24 January 1912

149 S.W. 173 HUGHES
v.
STATE. Court of Criminal Appeals of Texas. January 24, 1912. On Motion for Rehearing, June 26, 1912.

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Appeal from Montague County Court; A. W. Ritchie, Judge.

J. H. Hughes was convicted of the statutory offense of refusing to allow the sheriff of a prohibition county to examine the records of the express company of which he was agent, pertaining to the shipment of intoxicating liquors, and he appeals. Affirmed.

Speer & Weldon, of Bowie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On December 1, 1910, appellant was prosecuted under the act approved August 19, 1910, for refusing on November 24, 1910, to let the sheriff of Montague county examine the express records, pertaining to the shipment of intoxicating liquors, of the Adams Express Company at the town of Sunset in said county; he being agent of said express company at that time and place, and prohibition being in force in said county at the time. Said act of the Legislature was passed at the third called session of the Thirty-First Legislature (chapter 15) which convened on July 19 and adjourned on August 17, 1910. The act became effective November 15, 1910.

The evidence is very brief and is without contradiction. It shows that on November 24, 1910, W. G. Bralley, the sheriff, and W. W. Alcorn, the county attorney, of Montague county, together went to the office of said express company in said town at 3 o'clock p. m., during office hours of said express company at that time and place. The appellant was therein in charge of the said books and records of said express company at that time. The sheriff then requested appellant to show him the books and records of the express company showing the shipment of intoxicating liquors into Sunset. The appellant refused to let him see them because he had instructions from the express company to let no one examine the books unless they had an order from the court to do so, and appellant stated that he would have to do him just like he had done all others. The sheriff then took the appellant's name, the name of the express company, and he and the county attorney left. The appellant was the agent of the express company at said time and place, and had the books of the company at that point in his possession. The appellant himself substantially testified to all of the above facts. He further testified he did not know the law had been changed from what it was prior to November 14, 1910; that, after the officers left his office, he called an agent of the Rock Island Railroad who told him that he thought the officers had the right to examine his books which they had demanded to see. He thereupon the next day wrote to the county attorney that he had since then been advised that the sheriff had the right to examine his books, and that, if he desired, he could then examine them. That he did not intend to violate the law. He also stated that at that time he had a pamphlet from his express company instructing him about the new law, telling him that his books were subject to inspection by the officers at all reasonable hours, but he claimed that at that time he had not seen the orders. That the auditor of the company, shortly before then, had taken his file or binder out of his office and placed the instructions from his company therein, and then returned the file or binder to him, but that he had not actually seen and read it before the officers were there and left. He also admitted that in December thereafter, in a conversation with the sheriff, he had told him that, at the time he demanded the inspection of his books, he had a copy of said law in question pasted in the back of one of his books or binders; that neither the sheriff nor county attorney after November 24th, had requested him to be permitted to inspect his books. They testified that after appellant refused to let them see his books they secured the information they wanted from some other source. No complaint by motion, bill, or otherwise was made in the lower court to quash the complaint or information.

However, appellant now complains that the complaint and information are fatally defective in that they do not allege that the request to him to examine his books was made "at any reasonable time during office hours." The complaint and information both are very full and explicit, and fully allege all of the requisites in section 1 of said act except that they do not use the word "reasonable" in the allegations. The particular allegation covering the point is "that on and about 3 o'clock in the afternoon of the said 24th day of November, 1910, the same being within the office hours of said express company at its said office in the town of Sunset, in Montague county, Tex., the said J. H. Hughes did then and there unlawfully refuse to permit W. G. Bralley to inspect the said books above mentioned, etc." Article 448, C. C. P. 1895, expressly enacts that an indictment "shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment." Article 449 is that, "when a statute creating or defining any offense uses special or particular terms,

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an indictment on it may use the general which in common language embraces the special term." Article 462 is: "Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."

While it might have been better to have charged that the request to examine appellant's books was at a reasonable time during office hours, yet, when it was alleged that the time the request was made was at 3 o'clock p. m. during office hours, and that the request was made of the defendant then and there, and the evidence shows that he refused, not because it was not reasonable time, but because his instructions were to refuse such request, the said information and complaint are sufficient.

Appellant asked four special charges: First, that as the evidence was insufficient to warrant a conviction, to find the appellant not guilty. The second that the law, under which he was prosecuted was an infringement of the Constitution and Bill of Rights and therefore void, and to acquit the appellant. The third that, if appellant had reasonable ground to believe he had a right to decline to permit the sheriff to inspect his books, to acquit him. And the fourth that it was not the policy of the law to punish a person when the circumstances surrounding a transaction show it was not his intention to violate the law, and therefore, if they believed he had no intention to violate the law in this case and had reasonable grounds to believe his acts were not in violation of the law, or if they had a reasonable doubt of it, to acquit him. Neither one of these charges should have been given. Besides, no bill of exceptions was taken to the refusal of the court to give either of them. The only mention of them in the motion for new trial is the court erred in refusing to give defendant's special charge No. 1 by him, and then No. 2, and then No. 3, and then No. 4. This was entirely insufficient even in a felony case. Ryan v. State, 142 S. W. 878, and Berg v. State, 142 S. W. 884, recently decided but not yet officially reported.

In misdemeanor cases, ever since the establishment of this court, and even before, it was so held by the Supreme Court, as shown by Goode v. State, 2 Tex. App. 522, that, "If he (appellant) is not satisfied with the charge of the court, he should except to the charge and ask such additional instructions as he may desire, and, when his instructions are refused, should also save a bill of exceptions to their refusal," citing several cases. Again in Campbell v. State, 3 Tex. App. 34, this court said: "The rule is well settled that in misdemeanors this court will not revise the action of the lower court unless it is excepted to by the defendant at the time of the trial, and in such cases, if he is not satisfied with the charge of the court, he should except to the charge and ask such additional instructions as he may desire, and, when his instructions are refused, should also save a bill of exceptions to their refusal." See, also, Hobbs v. State, 7 Tex. App. 118; Downey v. State, 33 Tex. Cr. R. 380, 26 S. W. 627; Cole v. State, 28 Tex. App. 536, 13 S. W. 859, 19 Am. St. Rep. 856; Loyd v. State, 19 Tex. App. 322, and many other cases to the same effect by this court.

Appellant has some bills of exceptions complaining of the action of the court in limiting the argument on each side to 30 minutes. He shows that the case went to trial at 1:30 p. m. on March 6, 1911; that the testimony was closed by 4:30 p. m. Appellant took up all of his 30 minutes in arguing the law to the court. We understand his contention in the lower court was that the act under which appellant was prosecuted was unconstitutional. It is not made very clear why he took up his 30 minutes in argument to the court on the law of the case. The bills do show, however, that, when his 30 minutes had been taken up by him, the court declined to hear him further on the law; he contending for more time and the court declining to give it to him for that purpose. The court did, however, offer to give him additional time to argue to the jury, but, as he was trying to get the court to give peremptory instructions to the jury to acquit, he did not desire to argue to them, but expressly waived his right thereto. Another bill shows that, after he had concluded his argument, the court permitted the county attorney to again address the jury in...