White v. State

• Decision Date: 28 November 1917
• Docket Number: (No. 4725.)
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W. 1117

WHITE v. STATE.

(No. 4725.)

Court of Criminal Appeals of Texas.

November 28, 1917.

Rehearing Denied January 16, 1918.

Appeal from District Court, Gregg County; Daniel Walker, Judge.

Jeff White was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibited territory, and appeals. Affirmed.

Young & Stinchcomb and Riley Strickland, all of Longview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibited territory, and his punishment assessed at the lowest prescribed by law.

The indictment was duly preferred by the grand jury on May 3, 1917, alleging the offense to have been committed on or about December 20, 1916, "and anterior to the presentment of this indictment," and that in the pursuance of said business appellant did unlawfully sell intoxicating liquors to D. C. Philpot on or about December 20, 1916, and to J. A. D'Orsay on January 14, 1917. Of course, the indictment embraced the period from the time it was preferred, May 3, 1917, back within the period of limitation, three years.

The state proved that prohibition was in force in Gregg county from February, 1903, by the proper orders of the commissioners' court and the due publication thereof by the county judge.

Mr. Stuckler, the agent of the Wells Fargo Express Company at Longview testified that appellant received from that company at Longview intoxicating liquors as follows: January 1, 1916, 12 quarts of whisky; March 4th, 4 quarts; March 6th, 6 quarts; March 31st, 6 quarts; July 14th, 12 pints; August 15th, 36 pints of beer; August 29th, 36 pints of beer; September 6th, 4 quarts whisky; October 5th, 4 quarts; October 28th, 6 quarts; November 15th, 6 quarts; January 26, 1917, 8 pints; March 14th, 1 gallon wine; March 21st, 4 quarts whisky. The evidence does not disclose how much other intoxicating liquors, if any, appellant received from other sources during said period.

D. C. Philpot swore that he bought a pint of whisky from appellant about December 20, 1916, and paid him $1 therefor.

J. A. D'Orsay swore that on January 13, 1917, he bought one bottle of whisky from appellant; that on January 14th he bought another; that on January 24th he bought another; that on January 25th he bought another; that on January 26th he bought another; that he paid for every bottle he bought from him; and that all this was in Gregg county. This made five separate and distinct sales by appellant to D'Orsay of intoxicating liquor, whisky. D'Orsay further swore that either on the first or second occasion when he bought a bottle of whisky from appellant, appellant said that when he got whisky he got it to sell, and not to drink, and that he had to be careful whom he sold it to.

G. E. Knox swore that in January, 1917, he bought a pint of whisky from appellant and paid him a dollar for it. He further swore:

"I got whisky from him more than once, but I do not remember the times. * * * All I ever got from him was for other people. I didn't have any money to buy for myself. The reason I got it was that I would get a drink out of it. That's the way I got my drink. I have gotten from Mr. White [appellant] three or four pints, I guess, or five; I don't know how much. I don't know how long he has been selling whisky, but some time last fall and winter. * * * I would get whisky from him wherever he might be, if he had any. He would be carrying it in his pocket. * * * I generally went to his room. I don't know how many times I went to his room, but it was two, three, four, or five times. I got it in pint bottles. I gave him a dollar for it. I said I got it from him four or five times altogether."

On cross-examination he swore:

"The space of time covered by the first time I got whisky from him, and the last was something like four or five months. I got some of it in 1916 and some of it in 1917."

Mr. D. F. Meridith, the sheriff of Gregg county, testified that he examined the records of the internal revenue collector at Austin with reference to the licenses for selling intoxicating liquors in said county, and that he took an exact copy of the license to White & Foster, the firm composed of J. D. White, the defendant, and J. M. Foster, the license to extend from September 1, 1916, for a year. This examined verbatim copy of the license was proven up and introduced in evidence. Appellant himself swore on his direct examination that he took out the said revenue license for himself and Foster in September, 1916. He also swore that he was prosecuted in the county court of Gregg county for making a sale of whisky to said D'Orsay on January 24, 1917; that he pleaded guilty, and was fined $25, and confined in the county jail for 20 days. In addition, the state introduced in evidence the information charging him with the commission of said offense of making said sale to D'Orsay and that he pleaded guilty, his punishment was assessed as stated, and that he paid the fine and costs and served the term of 20 days in jail.

There is more or less testimony by other witnesses tending rather strongly to corroborate the said witnesses as to the respective sales made by appellant to them.

Appellant denied making any of said sales, and swore he did not engage in said business or occupation.

The evidence was unquestionably sufficient to show appellant's guilt and sustain the verdict of the jury.

He objected to the introduction of said examined copy of the internal revenue license. This examined copy was proven up completely, and was clearly admissible, as has uniformly been held by this court. Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Gersteman v. State, 35 Tex. Cr. R. 318, 33 S. W. 357; Gerstenkorn v. State, 44 S. W. 501; Gerstenkorn v. State, 38 Tex. Cr. R. 621, 44 S. W. 503; Thurman v. State, 45 Tex. Cr. R. 569, 78 S. W. 937; Maddox v. State, 55 S. W. 832; Terry v. State, 79 S. W. 319; Biddy v. State, 52 Tex. Cr. R. 412, 107 S. W. 814; Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. 141; Broadnax v. State, 68 Tex. Cr. R. 177, 150 S. W. 1169; King v. State, 53 Tex. Cr. R. 103, 109 S. W. 182.

Appellant made a motion for a continuance on account of the absence of John O. Douglass, who lived in Henderson, in Rusk county, and Dan Griffin and Irwin Gray, who lived at Longview, in Gregg county, where this case was tried. The application alleged that he expected to prove by Douglass that he knew the witness D'Orsay and his general reputation in Rusk county for truth and veracity, and that it was not good. By Gray he alleged he expected to prove that said D'Orsay and Albert Hamby, another state's witness were frequently about his café at night for something like a month, and that nearly every night they would come in his place with lewd women and drunk; that by Griffin he expected to prove that said D'Orsay had one time sold him (Griffin) a pint of whisky. The alleged testimony by Griffin and Gray would have been inadmissible; that of Douglass could have been used for impeachment purposes alone. Hence the overruling of the application for continuance shows no reversible error. Trinkle v. State, 59 Tex. Cr. R. 259, 127 S. W. 1060; Gee v. State, 57 Tex. Cr. R. 151, 122 S. W. 23; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 544; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Bolton v. State, 43 S. W. 1010; 2 Vernon's Crim. Stat. p. 317, note 25. Moreover, appellant's motion for new trial was not acted upon by the court for nearly two weeks after the trial, and no affidavit of either of these witnesses was procured, showing they would have testified as alleged. The diligence to procure the attendance of said Griffin and Gray was insufficient.

Appellant has a bill to what he claims was said by the prosecuting attorney in argument, to the effect.

"We find that the defendant was around Longview Junction, a place where whisky was sold in every nook and corner, and which is the bootlegging territory of Gregg county."

He objected to this argument, but he did not ask any charge. The court qualified the bill by stating:

"That the evidence in this case showed that bootlegging was prevalent in the Junction territory, and the district attorney's argument was not in the exact language quoted, but was based on the facts as shown."

The record unquestionably shows that bootlegging, as the unlawful sale of intoxicating liquors is commonly denominated, was prevalent in the territory mentioned, and the argument complained of, as stated by the court, was clearly based on the facts as shown in the record.

Appellant has bills which show he complained of the admission of the testimony of each of the witnesses Rosson, Bailes, Morgan, Northcut, Cunyus, and Mayfield, wherein the court permitted each one of them to testify, in substance, that they knew the general reputation of appellant in the community in which he lived as that he was a man that deals in and sells intoxicating liquors. Appellant's objection was that it was an attack on his general reputation, and that he had not put that in issue. The court qualified each of these bills by stating, in substance, that appellant had pleaded for a suspended sentence, and that he admitted that testimony because thereof, and at the time, in each instance, instructed the jury that such testimony could be considered by them only on the issue of a suspended sentence.

This testimony was clearly admissible as expressly enacted by the Legislature (article 865c, 2 Vernon's Crim. Stats.) and as held by the uniform and many decisions of this court (Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Conaster v. State, 75 Tex. Cr. R. 91, 170 S. W. 314; Martoni v. State, 74 Tex. Cr. R. 93, 167 S. W. 349; Backus...