Schwulst v. State

• Decision Date: 29 January 1908
• Citation: 108 S.W. 698
• Court: Texas Court of Criminal Appeals
• Parties: SCHWULST v. STATE.

108 S.W. 698

SCHWULST v. STATE.

Court of Criminal Appeals of Texas.

January 29, 1908.

Rehearing Denied March 20, 1908.

Appeal from Grayson County Court; J. W. Hassell, Judge.

Frank Schwulst appeals from a conviction. Reversed and remanded.

Smith & Wall, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted under article 406 of the Penal Code of 1895, for selling intoxicants in local option territory in a "blind tiger." One of the questions raised is the sufficiency of the indictment, which we deem unnecessary to discuss specifically.

We think the statute defining and prohibiting the sale of liquor by means of a "blind tiger" is not violative of a constitutional provision, and it is within the power of the Legislature to prohibit sales of intoxicants in this manner, and prescribe a higher punishment for this character of sale than is provided against other characters of sale.

One ground of the motion to quash is predicated upon the theory or idea that the name of the seller is not set out in the indictment. This objection is not well taken. The pleading charges appellant with selling to John Murphy. The evidence introduced by the state, as well as that by the defendant, excludes the idea that he in fact made the sale, but that the sale was made by another party, whose face was covered with a mask. The theory of the prosecution is that appellant owned the intoxicant shown to have been sold by the party wearing the mask, and that said party was the agent and employé of appellant, and as such made the sale. If the state's evidence is sufficient to show that the masked party was the agent of appellant, and so selling, appellant would be equally guilty and the indictment would sufficiently charge the offense, by alleging directly that appellant made the sale. All parties to the commission of offenses known as misdemeanors are principals, whether they are in fact principals or accomplices. Houston v. State, 13 Tex. App. 595; Winnard v. State (Tex. Cr. App.) 30 S. W. 555; Rape v. State, 34 Tex. Cr. R. 615, 31 S. W. 652; Bogel v. State, 42 Tex. Cr. R. 389, 55 S. W. 830; Buchanan v. State (Tex. Cr. App.) 33 S. W. 339; Beuchert v. State, 37 Tex. Cr. R. 506, 40 S. W. 278; Segars v. State, 40 Tex. Cr. R. 578, 51 S. W. 211.

Some of the questions for revision with reference to the matter of seizure, arrest, etc., mentioned in said article 406, supra, have been so modified and changed by recent legislation that, even if they were raised on the face of this indictment, as suggested by appellant, we would deem it unnecessary to consider them in this case. In fact, we do not believe the questions are in the case.

It became a serious question on the trial as to whether or not the masked party selling to Murphy was the agent of appellant or of Aldridge. Appellant took out internal revenue license in July, 1906, which supposedly was to continue for 12 months. The license authorized him to sell as a retail liquor dealer. Aldridge secured the same character of license in February, 1907. There is evidence going to show that he bought out appellant's business at the place where the sale should have occurred prior to such sale; also it is shown that Aldridge's license was posted in the room where the sale should have occurred, and at the time; and the contention further is that appellant was not in the business at the time of and sometime prior to the sale, but that Aldridge was. The court charged the jury that the issuance of the United States internal revenue license to the defendant as a retail liquor dealer for the year ending June 30, 1907, was admitted as a circumstance bearing upon whether defendant was, at or about the time alleged in the indictment, in the city of Sherman, engaged in the business of a retail liquor dealer. He also charged the jury that, if they should find that Murphy bought the liquor, as alleged from a masked or hooded man, in the Frisco Hotel building, and that it was made for and with the consent and under the...