Mince v. State

• Decision Date: 06 June 1923
• Docket Number: (No. 7670.)
• Parties: MINCE v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 564

MINCE v. STATE.

(No. 7670.)

Court of Criminal Appeals of Texas.

June 6, 1923.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Marvin Mince was convicted of the unlawful sale of intoxicating liquor, and appeals Affirmed.

W. W. Kirk, of Plainview, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of 1½ years.

A party of young men and women were together. One of them, Fred Wimberly, wrote a check for $3 and gave it to Ocie Husky, who, together with one of the girls, went in an automobile after some whisky. They went to the home of the appellant, which was on a ranch. Husky told the appellant he wanted to buy some whisky. Although appellant had retired for the night, he got up and put on his clothes and went across the prairie about a mile. Quoting Husky, he said:

"It was dark. I had a check that Fred Wimberly gave me for $3, and gave it to the defendant for whisky. I got a quart of whisky from him for this $3 check, I guess; that is what it was supposed to be. I handed the check to the defendant. He put the whisky in the car for the $3."

There was testimony showing that the parties drank the whisky, and, while there was a controversy on the subject, the evidence is sufficient to show that the liquor obtained was intoxicating. Several of the parties testified to facts showing this. The girls, it seems, were of ill repute. Husky, when recalled by appellant, testified that, when he mentioned the purchase of the whisky, appellant said he did not have any liquor, but that some might be obtained at the headquarters from a man named Webb Roberts. The witness handed the check to appellant, and asked him to drive the car to the place where the whisky could be obtained. This appellant did. The witness sat down in the car with a quilt over him, and did not know where they were driving, and did not see what took place. He did not know that the car stopped until he heard appellant talking to some one. He found the whisky in the car, but did not know who put it there. He said on cross-examination that he gave a check to the appellant to get some whisky, and the appellant said he did not have it, but could get it, and he did get it. The witness could not say who put it in the car; that he did not handle it until he had gone some distance.

Appellant's version is this: He told Husky he had no whisky, and in reply Husky inquired about where some could be obtained. He informed Husky that it might be gotten at the headquarters. Appellant, at the request of Husky, and for his accommodation, drove the car to the headquarters on the ranch, and went to Webb Roberts and obtained the whisky. He handed him the check which Wimberly had executed, and which named no payee. Roberts put the whisky in the car.

Roberts was not living upon the ranch at the time of appellant's trial, and his whereabouts was unknown. According to appellant, he, at the request of Roberts, exchanged the check with Wimberly for money which was given to Roberts. Appellant left the ranch in search of work, first going to Electra and later to Oklahoma.

There was found upon appellant's premises when the officers went to arrest him some fruit jars, one of which contained a small quantity of whisky. Three or four weeks later appellant was arrested in the Creek country of Oklahoma. The opinion is expressed that the evidence is sufficient to support the finding of the jury that the appellant was interested in the sale of the liquor, and that the liquor was whisky. In support of his proposition that Husky's testimony is contradictory, and does not support the conviction, appellant cites Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Cramer v. State (Tex. Cr. App.) 246 S. W. 380; Bell v. State (Tex. Cr. App.) 247 S. W. 284; Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773; Cortinas v. State (Tex. Cr. App.) 245 S. W. 911. The position is not, in our opinion, sustained.

The jury was instructed in appropriate language that, if appellant was acting as an accommodation agent for Husky, they would acquit, or if upon that subject they had a reasonable doubt, the...