Whitehead v. State

• Citation: 147 S.W. 583
• Parties: WHITEHEAD v. STATE.
• Decision Date: 15 May 1912
• Court: Texas Court of Criminal Appeals

147 S.W. 583

WHITEHEAD v. STATE.

Court of Criminal Appeals of Texas.

May 15, 1912.

Appeal from District Court, Sabine County; W. B. Powell, Judge.

John Whitehead was convicted of pursuing the business of selling intoxicating liquors, and he appeals. Reversed and remanded.

Hamilton & Minton, of Hemphill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, tried, and convicted of the offense of pursuing the business or occupation of selling intoxicating liquors, and his punishment assessed at two years' confinement in the penitentiary.

The indictment, after making proper allegations of the fact that prohibition was in force in Sabine county, alleges that appellant "did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law aforesaid, and which law aforesaid was then and there in full force and effect in said Sabine county, and that said John Whitehead did then and there on or about the said date, to wit, the 15th day of August, 1911, unlawfully sell intoxicating liquors to Bill Whitehead in violation of law, and on or about the 23d day of August, 1911, did unlawfully sell intoxicating liquors to Bill Hogan, in violation of law, and did on or about the 24th day of August, 1911, again sell intoxicating liquors to other persons to the grand jurors unknown, in violation of law, and on or about said date did then and there make different and other sales in violation of said law to persons to the grand jurors unknown, and did in said county and state in the months of August and September, 1911, and anterior to the presentment and filing of this indictment, make more at least than two sales of intoxicating liquors in violation of said law, which was then and there in full force and effect in said Sabine county as aforesaid, against the peace and dignity of the state."

1. Appellant excepted to the following portion of the indictment, and moved to strike it out: "And did on or about the 24th day of August, 1911, again sell intoxicating liquors to other persons to the grand jurors unknown in violation of law, and on or about said date did then and there make different and other sales in violation of law to persons to the grand jurors unknown, and did in said county and state in the months of August and September, 1911, and anterior to the filing and presentment of this indictment, make more at least than two sales of intoxicating liquors in violation of said law." The grounds alleged by appellant are that said allegations are too general, and are not sufficiently specific to put the defendant on notice of what sales and to whom he is alleged to have made sales. The offense defined by statute is pursuing the business or occupation of selling intoxicating liquors, and under ordinary circumstances it would be necessary to allege that he made a sale to any person to properly charge the offense of pursuing a given business or occupation; but evidence that he had made sales to divers and sundry persons would be admissible as evidence as tending to show that he was pursuing the given business or occupation. All evidence which would tend to show that he was pursuing that occupation would be admissible to prove that fact, and it would not be necessary to allege in the indictment any of the evidence relied on to prove that he was guilty of the offense. However, in this instance the Legislature, in making it an offense to pursue the business or occupation of selling intoxicating liquors, has provided that no person shall be convicted of that offense unless it be shown that he has made at least two sales in three years, and this court has held, in the case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, that as the Legislature has provided that two sales must be proven, that the person to whom the two sales were made must be alleged in the indictment, and it being necessary to prove two sales, they must be proven as alleged, but the rules of evidence are not otherwise changed, and all evidence which would tend to show that the person under indictment was guilty of the offense of pursuing that business or occupation named would be admissible. The Legislature only requiring that two sales be alleged, when these two are alleged and proven, proof of other sales would be admissible if it tended to show that one was pursuing that business, and it is not necessary to allege the names of more than two persons. In this character of case one is being prosecuted for the offense of pursuing a given occupation, and is not being prosecuted for making a sale to an individual. Evidence that he had made a sale is admissible as a circumstance tending to prove the offense charged; but proof that one had made two or even three isolated sales would not sustain a conviction wherein he was charged with pursuing the business and occupation. The court therefore did not err in overruling the motion. However, in the indictment sales were alleged to have been made to Bill Whitehead and Bill Hogan. The state placed both of these men on the stand as witnesses, and both denied emphatically they had purchased any intoxicating liquors from appellant. The state then introduced Mr. King, who testified that he was present, and that appellant sold whisky to Whitehead on one occasion, and to Hogan on another occasion. This was all the evidence introduced by the state, and if we take the evidence of King as true, and find that on one occasion appellant sold to Bill Whitehead, and on another occasion sold to Bill Hogan, in the absence of any other testimony, this would not support a conviction for the offense of pursuing the business or occupation of selling intoxicating liquors. In addition to proving at least two sales, some other facts or circumstances must be proven, such as he had received a large amount of liquor, or was in the habit of making sales, etc., or some other fact or circumstance which tends to prove the offense. Proof of two isolated sales does not show that one is engaged in that business or occupation, in the absence of other facts or circumstances tending to so show.

2. While a witness was testifying, appellant asked him on cross-examination if he was not engaged by the officers to help catch men who are selling intoxicating liquors. If a witness is employed to assist in catching violators of this or any other law, and is giving material testimony, the fact that he has been employed is admissible in evidence as going to show his bias, intent, or motive in the matter. The authorities were collated in the recent cases of Pope v. State, 143 S. W. 611, and Earle v. State, 142 S. W. 1181, and we refer to them.

3. In the motion for a new trial it is alleged that defendant was absent during a portion of the trial, and reversal is asked on that ground. From the evidence it appears that after the evidence had been closed, and the state's attorney had made his opening address, while defendant's counsel was addressing the jury, defendant stepped outside of the courtroom and went into the closet, and was absent from the room from 3 to 10 minutes, returning while his counsel was still speaking. His absence at the time was not noticed by the court or any officer of the court, and no proceedings were had during his absence except that his counsel continued to speak. We do not think this would present cause for reversal. This question has been recently before the Supreme Court of the United States in the case of Diaz v. United States, reported in the April number of the advance sheets published by the Lawyers' Co-operative Publishing Company, 223 U. S. on page 455, 32 Sup. Ct. on page 254, 56 L. Ed. ___. In that case it is held: "As the offense in this instance was a felony, we may put out of view the decisions dealing with this right in cases of misdemeanor. In cases of felony, our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the impaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused...