Moreno v. State

• Decision Date: 18 October 1911
• Citation: 143 S.W. 156
• Parties: MORENO v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 156

MORENO v. STATE.

Court of Criminal Appeals of Texas.

October 18, 1911.

On Motion for Rehearing, January 24, 1912.

Appeal from Caldwell County Court; Geo. W. Kyser, Judge.

Juan Moreno was convicted of violating the local option law, and appeals. Affirmed.

E. B. Coopwood, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was prosecuted for violating the local option law, which had theretofore been adopted in justice precinct No. 4 in Caldwell county. He was convicted, and his punishment assessed at a fine of $50 and 20 days' imprisonment in the county jail. He entered into a recognizance, and brings the case to this court for review.

Appellant filed a motion in arrest of judgment on the following grounds: (1) Because the affidavit upon which the information in this case is based is insufficient, in that it does not allege that the beer, alleged to have been sold, was sold in justice precinct No. 4 of Caldwell county, Tex., the alleged prohibited territory. (2) Because there is a variance in and between the affidavit and the information, in that the affidavit does not allege where the alleged sale was made; whereas, the information alleges that it was made in justice precinct No. 4, Caldwell county, Tex.

In the affidavit or complaint it is alleged that at an election held it was determined that the sale of intoxicating liquors should be prohibited in justice precinct No. 4, in Caldwell county, Tex., and the necessary orders made and publication had, "and thereafter, to wit, on the 16th day of September, 1910, one Juan Moreno did then and there sell intoxicating liquor" to Dock Duncan. The information follows the complaint, except, instead of using the words "then and there," says "thereafter in said justice precinct."

We think the words "then and there," in connection with the other allegations in the complaint, have the same meaning as the words used in the information, and there was no variance, and the complaint and information both charge the offense to have been committed in the prohibited territory. See Words & Phrases, vol. 8, p. 6946; Jeffries v. Commonwealth, 12 Allen (Mass.) 152; Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146; Kennedy v. Commonwealth, 6 Ky. 490, and other cases cited. The case of Smith v. State, 49 S. W. 373, and other cases cited, do not support appellant's contention. In those cases there was no allegation as to the place; whereas, in this complaint there is a specific allegation as to the time and place as construed by the authorities.

We cannot consider that ground of the motion for a new trial complaining of the action of the court in overruling the motion for a continuance, as there is no such motion in the record, and no exception reserved to the action of the court in overruling the motion, if one was presented.

Neither can we consider the second ground of the motion, complaining that the court erred in permitting the minutes of the commissioners' court to be introduced in evidence. If such objection was made, no bill of exceptions appears in the record, and under our decisions, in the absence of a bill of exceptions, the matter will not be reviewed.

The beer was alleged to have been sold at a Mexican celebration held on the C. T. Shaw place. W. E. McDowell and Oscar Hoffman were permitted to testify that the C. T. Shaw place was a part of Thos. Maxwell league, and was within the territorial limits of justice precinct No. 4, at the time the prohibition election was held. The objections urged by appellant would only go to the weight of their testimony, and not to its admissibility. It is true the metes and bounds of a justice precinct are matters of record, and are the best evidence of the bounds of the precinct. This record was introduced by the state. But the record would not disclose what surveys are within the bounds of the precinct, and this can be shown by oral testimony.

The acts of the 30th Legislature, p. 447, regulate contests of local option elections, and, after the time prescribed by this law has elapsed, the validity of the election, upon the introduction of the orders of the commissioners' court, is presumed, and there was no error in the court instructing the jury that prohibition was in force in the territory described in the orders. Jerue v. State, 57 Tex. Cr. R. 213, 123 S. W. 414; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Ex parte Thulemeyer, 56 Tex. Cr. R. 337, 119 S. W. 1146.

The testimony of the state witnesses proved positively two separate and distinct purchases of beer from appellant, if believed. The appellant denied selling the beer, and claimed to have given it to the state witnesses. If the appellant desired that the word "sale" be defined, he should have requested instructions in regard thereto, and, not having done so, he cannot now complain; this being a misdemeanor. In a misdemeanor case, if the court fails to present any theory of a case desired by appellant, it is his duty to request such instructions and except to the failure of the court to give same, and, if he does not do so, it will not present such error as to cause a reversal of the case. Ellis v. State, 59 Tex. Cr. R. 626, 130 S. W. 170; Bradley v. State, 136 S. W. 446, and cases cited in these opinions.

The witness Duncan, who testified he purchased beer from appellant, also testified he did so at the request of the officers, knowing that if he succeeded in purchasing same appellant would be prosecuted and convicted. He said he paid his own money for the beer, paying 25 cents for one bottle, and later purchased two bottles for which he paid 40 cents. A portion of this beer he delivered to the officer requesting him to make the purchase. Appellant insists that this makes the witness Duncan an accomplice, and the court should have given the two special charges covering this theory of the case, requested by appellant. Article 407 of the Penal Code provides: "When the sale of intoxicating liquors has been prohibited in any county, justice precinct, city or town, the fact that a person purchases it in violation of the provision of this chapter shall not constitute such person an accomplice." He was not employed to purchase the beer, but merely did so by request.

There was no evidence raising the issue that appellant was acting as agent of the witness Duncan in making the sale. Consequently there was no error in refusing special charge No. 5 requested. Jones v. State, 60 Tex. Cr. R. 426, 132 S. W. 476.

All the other special charges requested by appellant were given, except the two which presented the theory: "Inasmuch as the evidence failed to show that the beer sold was an intoxicating liquor, appellant should be acquitted." There appears to have been no issue raised as to whether the beer was intoxicating or not in the trial of the case. The state's testimony showed a sale of beer by appellant to Duncan. The appellant's testimony showed a gift of the beer to Duncan. The price testified to by the state witness was 25 cents a bottle, or two for 40 cents. A barrel of beer was shown to have been in a wagon on the celebration grounds about 9 o'clock at night. Appellant claimed he had purchased it for others, naming them. The witness testified he did not know the brand; that it was just ordinary beer. The court instructed the jury that if they believed beyond a reasonable doubt that appellant sold to Duncan intoxicating liquor, to wit, beer, to convict. The appellant requested instructions that, as there was no evidence showing the beer to be an intoxicating drink, to acquit. This presents the question: Does a court judicially know that beer is an intoxicating liquor? This is a question of some difficulty, and our courts in the past have not been in accord on this question. In Aston v. State, 49 S. W. 385, this court held: "The proof shows that the prosecuting witness bought whisky of appellant, and it is a matter of common information that whisky is a spirituous liquor, distilled from corn and vegetables, and is highly intoxicating. It follows that the court did not err in charging the jury as to whether or not the defendant sold intoxicating liquor, because the courts take judicial knowledge of the fact that whisky is an intoxicating liquor." See, also, Douthitt v. State, 61 S. W. 404; Sebastian v. State, 49 Tex. Cr. R. 510, 72 S. W. 849; Wilcoxson v. State, 91 S. W. 581.

In Maier v. State, 2 Tex. Civ. App. 300, 21 S. W. 974, it is held: "It seems well settled that the word `beer,' in its ordinary sense, denotes a beverage which is intoxicating."

In Woollen & Thornton's Law of Intoxicating Liquors it is said: "Whether or not courts will take judicial notice that beer is an intoxicating or malt liquor has been one of much contrariety of opinion, and this arises from the fact that there are many kinds of beer well known to be neither malt nor fermented nor intoxicating liquors. Therefore, upon a proof of a sale of `beer,' and nothing more, many cases hold that it is not shown that there was a sale of either malt or intoxicating liquor. But by the better line of cases, on proof of a sale of `beer,' even without additional words, the courts will construe it as a sale of fermented, malted, or intoxicating liquors, and the burden is upon the persons claiming it is not a malted, fermented, or intoxicating liquor to show that fact. These decisions are based on the primary meaning of the word `beer.' `Webster,' said the Supreme Court of Indiana, `defines beer to be "a fermented liquor made from any malted grain, with hops and other bitter flavoring matter." In other words, it is a malt liquor, which the same author declares to be "a liquor prepared for drink by an infusion of malt, as beer, ale, porter, etc." It may therefore be said that beer is a liquor infused with malt and prepared by fermentation for use as a beverage. As a consequence, when "beer" is called for at a place at which...