Jones v. State

• Decision Date: 29 April 1893
• Citation: 22 S.W. 149
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 149

JONES v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1893.

Appeal from Robertson county court; O. D. Cannon, Judge.

Steve Jones was convicted of selling liquor to a minor, and appeals. Affirmed.

Graham & Bishop, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

This appeal is prosecuted from a conviction for selling liquor to a minor in violation of article 376 of the Penal Code. Trial was had March 21, 1893. The state was permitted to prove by several witnesses that "in person and physical appearance" the minor purchasing the liquor was about 18 years of age at the time of the trial, "and would have appeared younger in August" preceding the trial, at which time the sale occurred. This was objected to because it called for the opinions of the witnesses. The evidence as to the apparent age of the minor, as indicated by his physical appearance, was properly admitted. Garner v. State, 28 Tex. App. 561, 13 S. W. Rep. 1004; Marshall v. State, 49 Ala. 21; Lawson, Exp. Ev. 473. If it be granted the opinions of said witnesses, that the minor "would have appeared younger" in August than in the following March, were not admissible in evidence, yet we are unable, under the facts of this case, to see how any injury could result to defendant because of its admission. The state had proved as a fact that the minor was less than 17 years of age in August last, at the time of the sale, and by the opinions of witnesses that his appearance at the time of the trial indicated his age to be about 18 years. If he appeared to be only 18, 7 or 8 months after the sale, it would be but a reasonable conclusion that he would have appeared younger at the time of the sale. While, strictly speaking, such conclusion on the part of the witnesses may have been inadmissible, yet we do not think the error, if error, of sufficient importance to require a reversal of the judgment.

The court instructed the jury that, if they had a reasonable doubt as to whether the defendant had the written consent of the parent of the minor to sell him the liquor, they should acquit. The burden of proving such consent is upon the accused, and, inasmuch as he did not offer evidence on this phase of the case, the charge was more favorable to him than authorized by law. Reynolds v. State, (Austin term, 1893,) 22 S. W. Rep. 18. The court further instructed the jury if, "* * * at the time the purchase was made, said Willie Brennan [the minor] informed the...