Needham v. State

• Decision Date: 01 January 1857
• Citation: 19 Tex. 332
• Parties: GORDON NEEDHAM v. THE STATE.
• Court: Texas Supreme Court

19 Tex. 332

GORDON NEEDHAM

v.THE STATE.

Supreme Court of Texas.

1857.

The force of testimony on the mind is increased by the failure to rebut it, where, from the nature of the circumstances, its falsity can be easily shown, if it be false.

Proof that a place where spirituous liquors in less quantities than a quart are sold is called by the name of defendant; that defendant was frequently there, though not oftener than some others; that another sold the liquors, and that defendant presented an account to witness for spirituous liquors bought by him at said place in less quantities than a quart, which was settled by indebtedness of defendant to witness on another account, is sufficient, in the absence of rebutting testimony, to support a verdict of guilty of selling, or being concerned in selling, spirituous liquors in less quantities than a quart, without license.

Proof that defendant was concerned in selling spirituous liquors in less quantities than a quart, is sufficient to sustain an indictment charging that the defendant sold the liquors; the statute uses the words, “sell or be in any wise concerned in selling.”

See this case as to charging the jury upon the weight of evidence.

Appeal from Cherokee. Tried below before the Hon. John H. Reagan.

Indictment charging that the defendant “did then and there sell spirituous liquors in quantities less than one quart, without having obtained a license therefor.”

The statement of facts was as follows: The state proved by witness Bloomfield that he, witness, frequently, between the first of April, 1856, and the finding of the bill of indictment, in the county of Cherokee, in the town of Rusk, applied for and obtained spirituous liquors in less quantities than one quart, and paid for the same, at a grocery house in the town of Rusk, called Gordon Needham's grocery; that he does not know whether Needham was in the house at the time; nor does he know that the grocery belonged to Needham; that one Martin generally attended the grocery and set out the liquor; that Needham was frequently in the grocery. The state proved by one Taylor that he, Taylor, frequently called at said grocery and obtained and drank spirituous liquor in less quantities than one quart, between the first of April, 1856, and the finding of the bill of indictment; that said grocery was called Needham's grocery; that said Needham presented to witness the amount of his grocery bill in said grocery, and that he and witness compared accounts and found they were about equal; that one Martin attended the bar and set out the liquor; that witness sometimes heard the grocery called Martin's grocery; that witness frequently saw Needham in the grocery, but not more frequently than he saw other citizens of the town.

The court charged the jury as follows:

If the proof shows that the defendant sold, or was concerned in selling, liquors in quantities less than a quart, you should find him guilty, and fix his punishment at a fine of any sum not less than fifty nor more than two hundred dollars; otherwise you should find him not guilty. If liquor was sold, no matter by whom, at a grocery commonly called Needham's, in quantities less than a quart, and Needham collected the money due on the account for liquor so sold, in his own name and right, this was a recognition of the authority of the person selling the liquor, to do so for his benefit, and you should convict.

If the witness Taylor testified that he bought liquor at Needham's grocery, in quantities less than a quart, and that Needham presented him his account for the liquor and received payment for it, and there is no proof of sales to Taylor of quantities of a quart or more, this is proof that the items in the account were for liquors sold in quantities less than a quart, and would require at your hands a conviction.

Defendant's counsel asked the court to give the following instruction: That as defendant is charged with selling liquors himself, they must believe from the evidence that he sold the liquor himself; and although they may believe from the evidence that another person sold the liquor, with whom he was concerned, yet if they do not find that he sold the liquor himself, or that it was sold by some one acting under and by his direction, they must find for defendant.

The court refused to give...