McElroy v. State

• Decision Date: 18 April 1906
• Citation: 95 S.W. 539
• Parties: McELROY v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W. 539

McELROY v. STATE.

Court of Criminal Appeals of Texas.

April 18, 1906.

Appeal from Coryell County Court; R. E. West, Judge.

G. S. McElroy was convicted of violating the local option law, and he appeals. Affirmed.

J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for violating local option law; punishment fixed at a fine of $60 and 30 days' confinement in the county jail.

The statement of facts shows, in substance, that appellant had ordered from Waco a gallon of whisky, to be sent him C. O. D. at Gatesville, in Coryell county; that the whisky reached that point in obedience to said order; that appellant at the time was in Hamilton county, at which point he received notice from the express office in Gatesville that his package had arrived. Prosecuting witness Little was present with the defendant when he received the notice. Appellant stated to witness he did not want the whisky. Whereupon witness stated to appellant that he would like to have it. Appellant then gave him the following order: "Gatesville, Texas, May 3, 1905. Mrs. Russell: Please deliver to Jack Little my express, and he will pay charges, and oblige. G. S. McElroy." It was agreed that this order was executed and delivered in Hamilton county; that Little subsequently presented the order to T. C. Russell, the express agent at Gatesville, and upon said order the express agent turned over and delivered to him the whisky at the express office in Gatesville; that Little paid the C. O. D. and express charges, and took the whisky; that the order above set out is the one delivered to Little, and the identical order presented to T. C. Russell, the express agent, and upon it the delivery of the package occurred.

Appellant requested the court to charge the jury that if the order was addressed to Mrs. Russell, and T. C. Russell, the express agent, delivered the goods to Little, then such a delivery would be without authority of appellant, and he would be entitled to an acquittal. He further requested a charge to the effect that if the order was executed and delivered in Hamilton county, and Little was to receive and accept the package at Gatesville, and he did so accept and receive it, the sale would be in Hamilton county, and not in Coryell. We do not believe either proposition correct. This was not a sale in the proper acceptation of the term, but an order which authorized the transfer of the property upon its presentation. The delivery of the goods was to occur at Gatesville, and such we understand to have been the intention of the parties at the time of the execution of the order by appellant and its acceptance by Little. Parties have the right to make such contracts as they deem proper, and the intention of the parties to such contract is usually the criterion by which the contract is to be understood and construed. In our judgment the order given and accepted was intended to operate in Gatesville and transfer the property there upon the conditions stated. Nor was appellant correct in the second charge, to wit, that the delivery by T. C. Russell of the goods was not binding on him under this order, as it was directed to Mrs. Russell. The facts admittedly show that the goods were in the express office, and it was that...