Leonard v. State

• Decision Date: 04 December 1912
• Parties: LEONARD v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 632

LEONARD v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1912.

Rehearing Denied January 15, 1913.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Dude Leonard was convicted of a violation of the prohibition laws, and he appeals. Affirmed.

Smith & Palmer, of Comanche, and J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted for pursuing the business or occupation of selling intoxicating liquors in Comanche county from March to September, inclusive, during 1911, after prohibition had been legally and properly declared in force therein, and charging that during that time he made some seven separate and distinct sales of intoxicating liquors to specific persons named. From a conviction he appeals.

The point is made against the indictment that it does not specifically allege that he followed said business or occupation, and made said specific sales, while said prohibition law was in force. The indictment does specifically allege that on June 5, 1910, in accordance with an order theretofore made by the commissioners' court of said county, a prohibition election was held, and that thereafter said commissioners' court canvassed the result, and ascertained that prohibition had carried, and thereafter that the proper orders had been made declaring said result, ordering the four weeks publication thereof as required by law, and that thereafter such publication was made. The indictment then repeatedly specifically charges that in violation of said law the appellant from March to September, inclusive, followed the business or occupation of selling intoxicating liquors in violation of said law, and then charging several specific sales made within the space of said time in violation of said law. The specific time in which said order of the commissioners' court declaring said result and ordering said publication and when said publication was made is not specifically alleged, but the indictment would properly fix the time from the allegations as made, as June 5, 1910, as conceded by appellant in his brief, or not further than some six weeks later which it would take to put the law in effect by said orders, etc., and would thus be not later than about July 15, 1910. The election having been ordered at the time specified and prohibition carried, and the proper orders made putting it in force, we judicially know that no other election could have been held and said law repealed prior to the alleged violation thereof by appellant. So that, taking the allegations of the indictment as a whole, there can be no question that it shows that said law was in force, and could not have been repealed at the time he is charged to have violated it. The indictment follows substantially and almost literally those heretofore uniformly approved by this court under the law under which this prosecution is had, and was amply sufficient (Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and many other cases unnecessary to cite), and the court correctly overruled appellant's motion to quash the indictment.

The testimony clearly shows the receipt by appellant, through the express company at Sipe Springs, in Comanche county, where he lived during said five months, four shipments to him of alcohol, ten of whisky, and one keg of beer. These several shipments of alcohol and whisky were of various quantities. The evidence further shows during said time two sales of alcohol and five of whisky by appellant to the parties named in the indictment, and that prohibition was in force in said Comanche county. So that the evidence clearly was sufficient to sustain the conviction.

Appellant asked two special charges which were refused. It is unnecessary to quote them. They were to the effect that there were two prohibition laws in force in Comanche county, the one under which this conviction was had and...