Medlock v. State

• Decision Date: 24 June 1927
• Docket Number: (No. 10383.)
• Parties: MEDLOCK v. STATE.
• Court: Texas Court of Criminal Appeals

1 S.W.2d 308

MEDLOCK v. STATE.

(No. 10383.)

Court of Criminal Appeals of Texas.

June 24, 1927.

Rehearing Denied. November 23, 1927.

Appeal from District Court, Nolan County; W. P. Leslie, Judge.

L. L. Medlock was convicted of possessing potable liquor containing more than one per cent. of alcohol by volume, and he appeals. Affirmed.

Jno. J. Ford and Geo. W. Outlaw, both of Sweetwater, and Roy L. Duke and Stinson, Coombes & Brooks, all of Abilene, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Conviction for possessing potable liquor containing more than one per cent. of alcohol by volume; punishment, two years in the penitentiary.

Appellant was proprietor of a drug store in Roscoe in Nolan county. The liquor he sold was tincture of ginger. In a signed statement he admitted he had been selling the Sunset and Murphy brands of said liquor, and that same contained 92 per cent. of alcohol. He further said:

"I sell about two cases a month, each case containing 72 bottles; I don't average that much all the time, but have sold that much in the last 30 days. * * * In my opinion it could be drunk in sufficient quantities to intoxicate."

No witness affirmed that the Sunset and Murphy brands of tincture of ginger were put up in accordance with formulas prescribed by the United States Pharmacopeia, except as same appears in the general statement made by appellant while a witness, when he said that the tincture of ginger he sold was double strength, according to the United States Pharmacopeia. Conceding that it was a liquid so prepared, the issue would then arise as to whether same was possessed by appellant for sale as a medicine or for sale as a beverage, it being provided in article 674, P. C., that nothing in that chapter should prevent the keeping and storing for sale of any medicinal preparation manufactured in accordance with the formulas prescribed by the United States Pharmacopeia, which were manufactured and sold for legitimate and lawful purposes, and not as beverages. On the point of whether appellant sold the liquor as a beverage, there appears other evidence beside the statement of the accused showing the purchase and use of the liquor in question by a number of people, also the quantity and number of bottles found in the rear of appellant's place and in his toilet. Appellant admitted that he had made a rule that he would not let this liquor be drunk in his store, though he had no such rule relative to other articles sold as medicine.

The first bill of exceptions was taken to the refusal of peremptory instruction to find appellant not guilty. Passing the question as to the sufficiency of the bill, we see no error in the refusal of the charge requested.

There is a bill to the refusal of the court to instruct the jury that if appellant was subpœnaed to appear before the grand jury as a witness, was sworn, and was asked about and testified before said grand jury to the transactions and sales of tincture of ginger made by him, and gave the names of witnesses who appeared on the trial of this case and testified against appellant — that by reason of such facts the defendant would be immune from prosecution, and therefore the jury should be instructed to find him not guilty.

We have carefully examined the facts and the law applicable. Article 694, P. C., is as follows:

"No person shall be excused from testifying against persons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony."

It will be observed that, to exempt from punishment any person who has testified against those supposed to have violated the provisions of the chapter including said article, such person must have been required to so testify. This phase of the statute seems not to have been before this court for interpretation in any other case. In fact, we have been unable to find in any Texas decision a meaning ascribed to the word "require," when used as in article 694, supra. From the decisions of other jurisdictions, the textbooks and lexicons, we note that it has been often construed according to the different contexts and places used. The definitions most used and seemingly in all statutes such as the one before us are, to compel, to demand, to command, to make necessary. Mattingly's Heirs v. Read, 3 Metc. (60 Ky.) 524, 79 Am. Dec. 565; Meagher v. Van Zandt, 18 Nev. 230, 2 P. 57; State v. McCord, 8 Kan. 232, 12 Am. Rep. 469; Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667; Lippincott v. Ridgway, 11 N. J. Eq. 526; Brewster v. Brewster, 52 N. H. 52; People v. Central Pac. Ry. Co., 76 Cal. 29, 18 P. 90; Park v. Candler, 114 Ga. 466, 40 S. E. 523; McKeever v. Iron Co., 138 Pa. 184, 16 A. 97, 20 A. 938; 34 Cyc. p. 1626. From these and other authorities we conclude that testimony given, or a statement made before a court or grand jury, which is free from the elements of demand, or command or compulsion, and appears to have been made voluntarily, and with knowledge that it is not demanded or compelled, would be admissible in evidence against the party making it, under a statute such as this, and such party could not claim immunity for having given such testimony.

In the case before us appellant affirms that he was told by a deputy sheriff to come to the grand jury room, and went. No effort was made by him to show that any subpœna was issued for him. Moreover, it appears that, when he came into the grand jury room, he was distinctly and specifically warned by the district attorney that he need not make any statement unless he wanted to, and that any statement he might make could and would be used in evidence against him, if he was indicted; that such statement, if made by him, would be reduced to writing. After being told these things, he made a statement, some questions being asked him by the district attorney, and when the statement was reduced to writing, and the statutory warning theretofore given him had been inserted, same was exhibited to him, and by him signed. Nowhere in his testimony as given on the trial does he affirm or suggest that he was overreached, compelled, or required in any sense to make such statement. It is undisputed that same was not required or compelled. We are of opinion that he does not show himself entitled to claim immunity from prosecution because of having made said statement.

Appellant sought to have the jury told that, if he appeared before the grand jury at the request of the deputy sheriff, and made the statement offered in evidence, he should be acquitted. We do not regard same as the law.

Bill of exceptions No. 4 complains of the refusal of a charge that, if from the evidence the jury believed that appellant kept for sale tincture of ginger, believed by him to have been made according to the formulas prescribed by the United States Pharmacopeia, or if the jury had a reasonable doubt thereof, they should acquit. We do not understand this to be the law. It is expressly provided by article 674, P. C., that, if one who keeps such preparation as this tincture, even though put up according to the formulas of said Pharmacopeia, for sale for beverage purposes, and it is a liquor forbidden to be kept or sold for beverage purposes, he would be guilty of violating the law, no matter what formula he might believe the liquor to have been made under. In this connection we observe that the learned trial judge told the jury in the charge that, even though they found from the evidence that the liquor possessed by appellant was intoxicating, and that it was possessed by him for the purpose of sale, yet, if they found from the evidence that he believed same was not an intoxicating liquor, when taken in reasonable quantities, or if they had a reasonable doubt of this fact, they should acquit. Again, the court charged the jury that, if they found from the evidence that appellant did not possess potable liquor, as alleged in the second count, for sale as a beverage, or if they had a reasonable doubt of his so possessing such liquor for said purpose, they should acquit of the charge in the second count. The court also told the jury that, even though they found that appellant possessed for sale potable liquor containing in excess of one per cent. of alcohol by volume, yet if they found that same was not...