Walker v. State

• Decision Date: 23 October 1912
• Citation: 151 S.W. 318
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 318

WALKER v. STATE.

Court of Criminal Appeals of Texas.

October 23, 1912.

Rehearing Denied November 27, 1912.

Appeal from Delta County Court; C. C. Dunagan, Judge.

Joe Walker was convicted of giving intoxicating liquor to another while a public election was being held, and he appeals. Affirmed.

Patteson & Patteson, of Cooper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under an information alleging that in the town of Cooper, voting precinct No. 1, in the county of Delta, state of Texas, while a public election was being held on July 22d to determine whether the sale of intoxicating liquors should be prohibited in this state, he did then and there unlawfully and willfully give to Henry Nidever intoxicating liquor, etc. When tried, he was convicted, and his punishment assessed at a fine of $200.

The motion in arrest of judgment was not well taken. By the use of the words "then and there," it was charged that the offense was committed in the town of Cooper. Moreno v. State, 143 S. W. 156; De Los Santos v. State, 146 S. W. 919, and cases cited.

Neither was it necessary for the information to state that appellant was not a druggist, etc. The proviso forms no part of the definition of the offense. Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 789; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073.

The other grounds in the motion—that the information charged both a gift of intoxicating liquor and charged that appellant "informed Nidever of the whereabouts of intoxicating liquor"—present no ground in arrest of judgment. By the use of the conjunction "and," it is permissible to allege that a misdemeanor was committed in any of the ways defined by the statute. Hart v. State, 2 Tex. App. 39; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Gage v. State, 9 Tex. App. 259; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Lancaster v. State, 43 Tex. 519.

As qualified by the court, bill of exceptions No. 3 presents no error. The information having alleged that the election was held in Cooper, voting precinct No. 1, in the county of Delta, in the state of Texas, the orders of the commissioners' court creating precinct No. 1 were admissible in evidence as well as the fact that Cooper was in said voting precinct.

The court charged the jury: "If you believe from the testimony in this case beyond a reasonable doubt that the defendant on the 22d day of July, 1911, and you further believe that said day was an election day as alleged in the information in this case, that the said defendant did then and there unlawfully during the said day on which said...