Misher v. State

• Decision Date: 04 December 1912
• Citation: 152 S.W. 1049
• Parties: MISHER v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 1049

MISHER v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1912.

Rehearing Denied January 29, 1913.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Frank Misher was convicted of following the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals. Affirmed.

G. B. Fenley and Claude Lawrence, both of Uvalde, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of following the business and occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years' confinement in the state penitentiary.

After alleging that prohibition was in force in Uvalde county, in proper terms, the indictment alleges that thereafter, to wit, "on or about the 15th day of July, A. D. 1909, and prior to the filing of this indictment, in the county of Uvalde and state of Texas, one Frank Misher did then and there unlawfully engage in and pursue the business and occupation of selling intoxicating liquor, the same not then and there being permitted by law in said county; and he, the said Frank Misher, did then and there, in said county and state, on or about the 1st day of August, A. D. 1909, unlawfully sell four bottles of beer, the same then and there being intoxicating liquor, to one Roy Crane; and he, the said Frank Misher, in said county and state, did then and on or about the 15th day of August, A. D. 1909, unlawfully sell six bottles of beer, the same then and there being intoxicating liquor, to one Roy Crane; and he, the said Frank Misher, in said county and state, did, during the month of August, A. D. 1909, unlawfully sell intoxicating liquor, to wit, one bottle of whisky, to one S. T. Bunting; and he, the said Frank Misher, did then and there unlawfully, during the said month of August, A. D. 1909, sell intoxicating liquor, to wit, beer and whisky, to one J. T. Power, and to divers and various other persons whose names are to the grand jurors unknown, and in quantities to the grand jury unknown, all of which said occupation and business of selling intoxicating liquors was in violation of said law, and which said occupation and business so unlawfully pursued and engaged in by the said Frank Misher was not then and there permitted by law in said county of Uvalde aforesaid, against the peace and dignity of the state." This form of indictment has been so frequently approved by this court we do not deem it necessary to discuss these questions again. Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, and cases there cited.

In addition to proving sales to the persons above alleged, the state also proved by Josh Barker that he had bought beer from defendant on four or five different occasions, paying him 20 cents per bottle for it; that defendant kept the beer in a large ice box or refrigerator, and when the box was opened witness saw a large quantity of beer in it. And by Lee Robinson that he purchased a dozen bottles of beer from defendant on the day of his arrest. The objection urged to this testimony was "that it was irrelevant and immaterial, for the reason that it was nowhere alleged in the indictment that the defendant ever sold to these witnesses any intoxicating liquor." The defendant was not charged with making a "sale." This is one offense, and pursuing the business or occupation is a separate and distinct offense, made so by our laws; and evidence of any and all sales made would be admissible as a circumstance going to show that appellant was engaged in that business or occupation, as was the fact that he had a large quantity of beer on hand in his place of business, in an ice box. Robinson v. State, 147 S. W. 245; Dickson v. State, 146 S. W. 914; Clay v. State, 144 S. W. 280.

At the request of appellant, the court instructed the jury: "Gentlemen of the jury, you are instructed as a part of the law of this case that, even though you should find that the defendant made two sales of intoxicating liquors to the witnesses Josh Barker and Lee Robinson, and that said sales were made since July 11, 1909, you are bound to acquit the defendant, unless you should, in addition thereto, further find, beyond a reasonable doubt, that the defendant also made at least two sales as charged in the indictment to persons named in the indictment, and that said sales were made since July the 11, 1909." In this case it was alleged that a sale had been made to S. T. Bunting. Bunting testified on this trial that he purchased a bottle of whisky from appellant in the summer of 1909, and paid him 75 cents for it. He could not fix the exact time, but said that it was just about the time Hulett Bowles was killed, and that he purchased the liquor for W. R. Cook. The deputy sheriff was then introduced, and testified that Bowles was killed about the 4th day of August, 1909, and Cook testified that it was a day or two after Bowles received his death wounds when Bunting purchased the whisky for him. This testimony was all admissible. Another witness fixed the date on which he purchased the liquor as the day defendant was arrested, and the officer was permitted to state that he arrested defendant August 20th. This testimony was also admissible in order to fix the date. J. T. Powers testified that he had purchased both beer and whisky from defendant on a good many occasions, and paid him for it, but could not remember the date of the purchases, saying: "I paid him considerable money for beer and whisky, but do not now remember the amount of money nor the date of purchases." He stated he moved to Uvalde in March, 1909, and all the beer and whisky was purchased after that date and prior to the arrest of defendant. Witness remembered testifying at the examining trial, and said it may have been a month, six weeks, or two months before the examining trial when he purchased the liquors.

The state then introduced the justice of the peace, who identified the examining trial docket of his court and said: "These entries are in my handwriting; I made them myself; I wrote the dates myself; and I know I wrote the date correctly." After which the state introduced the docket, which showed the examining trial in causes Nos. 198 and 199 were held on August 21, 1909, in No. 200 on August 23, 1909, in Nos. 201, 202, and 203 on August 30, 1909; all being cases against defendant, charged with selling intoxicating liquor. The Encyclopedia of Evidence, vol. 11, p. 105, lays down the rule to be: "A public officer called as a witness may refresh his memory by the entries of records in his office, which he knew at the time of making to be correctly made. The witness must be able to say that the writing is a true statement; but it is not necessary that the witness should have an actual recollection of the facts; it is sufficient that the witness is able to state the memorandum is correct"—citing authorities from almost every state in the Union.

Again, another witness for the state, Roy Crane, testified to the purchase of beer from defendant, during the year 1909, some time between January and September, and said he paid him for it, but in his testimony declined to fix the date of purchase, whether prior or subsequent to July 11, 1909. He was then asked if he testified at the examining trial, and, being shown his testimony at the examining trial, said that it did not refresh his memory to the extent of rendering him able to testify positively to the date of purchase, independent of and without referring to this testimony. He stated, however: "I know I testified correctly at the examining trial, and I signed the testimony that was written down. I signed this document myself. At the examining trial I detailed the facts and told the truth, and I suppose the document I hold in my hand, which was signed by me, contains a correct statement of my testimony at the examining trial." After thus testifying, the state was permitted to prove that the date set forth in the instrument was August 15, 1909, as the date of purchase by witness from defendant. In volume 11 of the Encyclopedia of Evidence the rule is...