McGee v. State

• Decision Date: 31 October 1928
• Docket Number: (No. 11318.)
• Citation: 17 S.W.2d 50
• Parties: McGEE v. STATE.
• Court: Texas Court of Criminal Appeals

17 S.W.2d 50

McGEE v. STATE.

(No. 11318.)

Court of Criminal Appeals of Texas.

October 31, 1928.

Rehearing Denied May 22, 1929.

Appeal from District Court, Callahan County; M. S. Long, Judge.

John McGee was convicted of selling intoxicating liquor, and he appeals. Affirmed.

B. L. Russell, of Baird, and Dallas Scarborough, of Abilene, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

In this case the state charges a sale of intoxicating liquor to Elbert Bodine. Its proof was that a sale of such liquor was made to the party named. The defense was that the liquor sold was plum juice, not intoxicating, but that, if it was intoxicating, still no conviction could be had, because the liquor was sold to Elbert Bodine, Roy Bodine, and one Jeanes, jointly; and that there was such variance between the proof and the allegation as would prevent conviction. The issue of variance is mainly relied on by appellant, who cites Brown v. State, 102 Tex. Cr. R. 54, 276 S. W. 908, and Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099. We do not discuss the Brown Case further than to say that it, in common with O'Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Sessions v. State (Tex. Cr. App.) 98 S. W. 243; Ellington v. State (Tex. Cr. App.) 86 S. W. 330; and Price v. State, 83 Tex. Cr. R. 322, 202 S. W. 948, hold that there is a variance when the allegation in the indictment is of a sale to more than one, and the proof shows a sale to but one — a conclusion resting on entirely different reasons, and in nowise related to the contention here made. The Asher Case, supra, wherein a sale to one was charged, and the accused claimed that the facts showed a sale to two, was affirmed; but upon certain statements in the opinion on rehearing therein, which were dicta, and in nowise necessary to the decision of the case, appellant relies for his only support to be found in the decisions of this, or, as far as we have been able to ascertain, any other, jurisdiction. In the opinion on rehearing in the Asher Case, supra, appears the following: "The conclusion there reached was that the naming of the purchaser was descriptive of the offense, and an averment of a sale to one would not be supported by proof of a joint sale to two or more, and vice versa. To hold otherwise would necessitate overruling the cases cited in Brown v. State (supra) and again listed here for convenience. Dixon v. State, 21 Tex. Cr. App. 517, 1 S. W. 448; O'Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Price v. State, 83 Tex. Cr. R. [322] 332, 202 S. W. 948; Ellington v. State [Tex. Cr. App.] 86 S. W. 330; Sessions v. State [Tex. Cr. App.] 98 S. W. 243; Bruce v. State 44 S. W. 852; Yakel v. State, 30 Tex. Cr. App. 391, 17 S. W. 943 ; Arnold v. State, 47 Tex. Cr. R. 556 ; [Tippit] v. State, 53 Tex. Cr. R. 180 ; Westbrook v. State, 88 Tex. Cr. R. 223, 225 S. W. 750."

With the utmost respect for the member of this court who wrote in said motion for rehearing, we must insist that this quotation presents an erroneous deduction from the opinion in the Brown Case, supra, and that falling into this error of inference led to the citation of the other authorities named in said quotation, none of which support the rule stated therein. As said above, the Brown Case, with the other four named in conjunction therewith, holds that, when a sale to more than one named person is alleged, this is not met by proof of a sale to but one of them; this conclusion has support in many decisions holding that descriptive averments alleged must be proved, a hundred or more of which are collated by Mr. Branch under section 498 of his Annotated P. C., and with the general correctness of which the writer of this opinion is in entire accord; but, as we said in the dissenting opinion in the Brown Case, supra, it was believed by the writer that the naming of more than one as purchaser in a case charging the sale of liquor was surplusage which might be discarded.

We turn aside for a moment to show by a short analysis of each that the other cases named in the quotation from the Asher Case, supra, do not support the rule stated in said quotation. The page and volume of each case is in the quotation. The reference here will be only by name. The O'Shennessy, Price, Ellington, Sessions, and Brown Cases merely hold that proof of a sale to one will not meet allegations of sales to more than one, a proposition wholly different from the one before us. The Dixon Case goes no further than to hold an indictment bad which does not name the purchaser of the liquor alleged to have been sold. The Bruce Case merely decides the point that it is sufficient to prove a sale to the alleged purchaser, even though the proof further shows that such purchaser acted as agent for another. This case will be referred to later. The Yakel Case only decides that one is guilty under an indictment alleging a sale of liquor to a minor, even though the proof be that the minor bought for his father, no written consent appearing. The Arnold and Tippit Cases hold nothing save that an allegation of a sale to one who is named is at variance with proof of a sale to a person of a different name. The Westbrook Case holds that one who has been convicted for selling whisky to A, and has appealed, has the right to have a subsequent prosecution for a sale to B held in abeyance until the appealed case be decided, upon the ground that he desires to plead and prove that the sale to A and the sale to B were one and the same criminal transaction and constituted but one offense.

We have to this extent discussed the cases cited in support of the dicta in the motion for rehearing in the Asher Case in order that the correctness of our conclusion that the authorities therein cited do not support the proposition advanced, the fairness of which is left to the careful reader who may examine said authorities. The principle involved in a question of variance between an allegation of a sale to a number of parties, followed by proof of a sale to but one of them, cannot be invoked in support of the contention made in the instant case.

In this case every element of the offense is charged, and no more. Every element so charged was proved. There was a sale of intoxicating liquor to Elbert Bodine by this appellant on the occasion referred to in the indictment. Such sale to Elbert Bodine was a complete offense, and in no way added to either in degree or punishment by the amount sold or the number of purchasers. As said by the Supreme Court of Wisconsin in State v. Bielby, 21 Wis. 204: "The offense complained of works no injury upon the individual rights of the person to whom the sale was made, and none are * * * violated." Our statute makes no distinction based on the age, sex, personality, or number of the purchasers of intoxicating liquor. The gravamen of the offense is the fact of sale and not the fact of a sale to any one of a forbidden class. If what we have said above is true, and none of the cases referred to in the quotation in Asher v. State, supra, furnish precedent or authority for the conclusion stated in the motion for rehearing referred to, we are then brought face to face with the question as to whether this is a case without precedent. We must answer no.

In Ryan v. State, 32 Tex. 280, our Supreme Court, at a time when it had jurisdiction of criminal appeals, held that a charge in the indictment of a sale of liquor to one Wilson was in nowise affected or invalidated by proof of a sale to Wilson and another. So in Parker v. State, 45 Tex. Cr. R. 334, 77 S. W. 783, this court held that there was no variance between an indictment charging a sale to Miller and proof showing a sale to Miller and others, one of which others actually received the liquor, and was present with Miller and paid part of the money, when the liquor was paid for. These cases are directly in point, and neither of them has ever been overruled, as far as we can see, nor has any case been noted holding to the contrary.

The Westbrook Case, supra, while not directly in point, as are the Ryan and Parker Cases, deals with a case where conviction was had of one who was charged with a sale to one person named, and who, as appears from the opinion, had the right to claim such conviction a successful bar to his subsequent conviction for a sale to a different person at the same time and place; his right being only dependent upon whether he could show the sale to both as being part of the same transaction, i. e., the same offense. It seems to the writer that we confuse ourselves and create confusion in practice and application of the law when we attempt to bring into a decision of a case like this the question of obligation and contract incident to a sale in the sense of the civil statutes. As said in Bruce v. State, 39 Tex. Cr. R. 26, 44 S. W. 852: "The sale is to him, although it may be for the use of some other person, and with some other person's money. Any other construction, it seems to us, would subject the law to confusion, subterfuges, and evasions. As stated before, it is not a question of contract or obligation; it is simply a question of whether or not there is a variance between the allegations in the indictment and the proof. We hold there is no variance; that the proof shows that the sale was made to Brock, the party as alleged; and it does not matter for whom he purchased. The sale was made to him; and the allegation in the indictment is proven, although he may have purchased it for some one else."

This is the same principle adhered to in Yakel v. State, 30 Tex. App. 391, 17 S. W. 943, 20 S. W. 205, where the sale was to a minor who bought, but claimed he bought for another. Why confuse the issue plainly made both in pleading and proof of a sale to the person named in a liquor case by saying that the minds of the seller and those buying in...