Rutherford v. State

• Decision Date: 21 June 1905
• Citation: 88 S.W. 810
• Parties: RUTHERFORD v. STATE.
• Court: Texas Court of Criminal Appeals

88 S.W. 810

RUTHERFORD v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1905.

Appeal from Bosque County Court; P. S. Hale, Judge.

Jack Rutherford was convicted of violating the local option law, and appeals. Reversed.

Dillard & Word and H. J. Cureton, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for violating the local option law. There was testimony —perhaps a preponderance—introduced going to show that the hop ale charged to have been sold was a nonintoxicant. Special instructions were requested to the effect that, if the hop ale was a nonintoxicant, or if there was a doubt of it being an intoxicant, appellant should be acquitted. The court erred in not so instructing the jury. Patrick v. State, 78 S. W. 947; Mayne v. State, 86 S. W. 329, 12 Tex. Ct. Rep. 806; Uloth v. State (decided at the present term) 87 S. W. 822.

The question of good faith and mistake was also an issue in this case under the testimony. The court erred in refusing the charge asked by appellant covering this phase of the case. See the same authorities.

In the seventh paragraph of the charge the court thus instructed the jury: "If you believe from the testimony that defendant sold the hop ale to Jeff Barnes, as testified by said witness Barnes, and if you further believe from the testimony that said hop ale, if any, was not an intoxicant—that is, if you believe it was not of such quality as to produce intoxication when taken into the stomach in such quantities as may practically be drunk—then, if you so believe, you will acquit the defendant." Exception was reserved to this charge, and a counter charge asked. The objection is that it shifts the burden of proof, and required the jury to believe the liquid sold was not a nonintoxicant in order to acquit, whereas the law requires that the jury must believe the liquid to be an intoxicant before they can convict. The exceptions to this charge were well taken. The sale of an intoxicant is a prerequisite to a conviction under a charge of violating the local option law. Unless the state can show this beyond a reasonable doubt, an acquittal should be awarded. The jury are not required to believe the liquid is not a nonintoxicant; nor is it upon the defendant to show that it is not a nonintoxicant. The state must prove beyond a reasonable doubt that it is an intoxicant, and the jury should be so instructed.

Over the appellant's objection, Thompson was permitted to testify that he...