Spicer v. State

• Decision Date: 20 November 1929
• Docket Number: (No. 12781.)
• Citation: 21 S.W.2d 737
• Parties: SPICER v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W.2d 737

SPICER v. STATE.

(No. 12781.)

Court of Criminal Appeals of Texas.

November 20, 1929.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Tom Spicer was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

Saunders & Atchison, of Breckenridge, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; punishment, confinement in the penitentiary for a period of one year.

Appellant was a porter in a hotel. Daugherty, an officer, went to the hotel for the purpose of catching violators of the law against the liquor traffic. After registering at the hotel, Daugherty was conducted to room No. 214 by the appellant. From Daugherty's testimony the following is quoted:

"I went over and registered and he took me up to my room and I asked him if he could bring me some liquor — a half pint of whisky. I was to pay One Dollar and Seventy-five Cents ($1.75) for a half pint. He didn't deliver it to me himself. I ordered whisky and he went down and said he was out of one-half pints but he had another boy who was bringing it up to me. It was four or five minutes from the time defendant went away and told me he was out of one-half pints but that the other boy had half pints before he delivered it to me."

The witness further said:

"I had some marked money. I didn't give it to Tom Spicer. He wasn't present when I got the whisky."

The appellant made a written statement which the state introduced in evidence. From the statement we quote:

"I checked a man in room 214 at the Hotel about midnight Saturday night and took him some ice water. When I took him the ice water he asked for a good-looking girl and said he wanted a half pint of whisky. I went down on the elevator and met Tom Hart another porter and told him the man in 214 wanted half pint of whisky. I did not see the whisky and did not give it to Tom Hart. I just told him about the man in 214 wanted half pint of whisky. I did not see the whisky and did not give it to Tom Hart. I just told him about the man in room 214 wanting the whisky and told me he could take it up there if he wanted to. He said all right. I do not know where he got it."

The appellant's testimony upon the trial was in substance in accord with his confession. It is clear from the testimony that the appellant did not deliver the whisky to Daugherty; that Daugherty did not pay the appellant for the whisky; that at the beginning of the transaction the appellant told Daugherty that he had no half pints of whisky. That the other boy (Tom Hart) was selling whisky was not disputed. The appellant's confession, if true, tends to exculpate him. The state having introduced it, the presumption of the truth of the...