McDonald v. State

• Decision Date: 02 April 1924
• Docket Number: (No. 8156.)
• Citation: 260 S.W. 850
• Parties: McDONALD v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 850

McDONALD v. STATE.

(No. 8156.)

Court of Criminal Appeals of Texas.

April 2, 1924.

Appeal from District Court; Harrison County; P. O. Beard, Judge.

J. P. McDonald was convicted of unlawful sale of intoxicating liquor, and appeals. Affirmed.

H. T. Lyttleton and John Jasper, both of Marshall, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

According to the state's evidence, the witness Collins went to the home of Artie Jackson to buy some whisky. Jackson was not found, but the appellant and several others were there. The witness approached McDonald with reference to procuring whisky. McDonald said he had none, but could take the witness to where it could be obtained. Collins, Jackson, and another person whom Collins did not know went to the home of Archbell, about three blocks distant. The stranger knocked upon the door, and Archbell appeared. McDonald, Archbell, and the stranger had a conversation which was not heard by the witness. Archbell went out the back door, and from under a woodpile produced a pint of whisky which he handed to McDonald. Collins had previously given McDonald $2, the price of a pint of whisky, and requested him to procure it for him. Collins was acting as a detective, and the officers who employed him testified to facts corroborative of his evidence.

According to the appellant, he and a boy named English were together when Collins appeared at the home of Jackson and wanted to buy whisky. McDonald said that he knew of no whisky which could be bought. English said that he thought he could obtain a pint, the amount which Collins wanted, and the three went to the home of Archbell. Collins shoved some money into the hands of McDonald, who walked on the front porch and knocked on the door. Some one from the inside answered that he was sick. Appellant then walked back and returned the money to Collins. English requested that the money be given to him, and after receiving it, he walked away and later returned with a pint of whisky which he delivered to Collins. Appellant specifically denied that he got the whisky or had any interest in the sale or any arrangements with Archbell with reference to the sale of whisky, but that he wanted a drink, and Collins gave him one from the bottle which he had purchased.

Appellant sought to have his case continued. It is stated in his motion that 21 of the veniremen were selected by the jury commissioners. The court instructed the sheriff to fill the panel with talesmen, and said to him:

"In getting your pickups, it is a pretty busy time with the farmers, and have due regard as much as you can for this situation."

The record is silent as to whether any of the men selected by the sheriff served on the jury. No question is therefore presented for review touching the members of the jury that tried the appellant.

The court, in instructing the jury, presented appellant's theory that the money which he had received from Collins was returned to him and no whisky was obtained for or delivered to Collins by the appellant; also the theory that, if English obtained and delivered the whisky to Collins, there should be an acquittal. Upon both of these questions the court specifically instructed the jury that, if there was reasonable doubt, it should be applied in favor of the appellant. The theory of agency for the...