Johnson v. State

Decided November 4, 1914

Court of Criminal Appeals of Texas · decided 1914-11-04

1. —Local Option—Transporting and Delivering Intoxicating Liquors— Legislative Power. The Legislature has power to adopt remedial legislation in aid of the enforcement of the prohibition law, and the contention that the Allison Law prohibiting the unlawful transportation, carriage and delivery of intoxicating liquors into local option territory was invalid because it was enacted after prohibition had been adopted in the county of the prosecution is untenable. Following Fitch v. State, 58 Texas Grim. Rep., 366. 2. —Same—Constitutional Law—Intoxicating Liquors—Allison Law. The Act of th.e Legislature known as the Allison Law prohibiting the unlawful transportation, carrying and delivering of intoxicating liquors into local option territory except by a person who is a resident therein for his personal use, etc., is constitutional. Following Ex parte Muse, 74 Texas Grim. Rep., 76, and other cases. Davidson, Judge, dissenting. 3. —Same—Indictment—Statutes Construed. Where the indictment charged the defendant with unlawfully transporting, carrying and delivering intoxicating liquors into local option territory, there was no error in overruling a motion to quash the indictment on the ground that the Act of the Legislature under which the prosecution was brought was enacted after prohibition had been adopted in the county of the prosecution. Davidson, Judge, dissenting. 4. —Same—Indictment—Voting Precinct. In a prosecution for unlawfully transporting, etc., intoxicating liquors into local option territory and delivering the same to another, it was not necessary to allege the names of the various voting precincts in the county of the prosecution, the allegation that prohibition had been adopted therein, etc., being sufficient. 5. —Same—Indictment—Pleading—Several Offenses. Where the indictment charged that the defendant on a certain date in the county of the prosecution, wherein prohibition was in force, did unlawfully transport, carry and deliver one quart of intoxicating liquors to “H.,” etc., a complaint that the indictment charged three separate effenses is without merit, as the offense could he alleged to have been committed in all of the ways set out in the statute, and proof that the offense was committed in either of the ways alleged would sustain the conviction. 6. —Same—Rule Stated—Several Offenses—One Count. If several offenses are embraced in the same general definition and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. Following Howell v. State, 29 Texas Grim. App., 592, and other cases. 7. —Same—Sufficiency of the Evidence—Case Stated—Allison Law. Where the indictment alleged and the proof showed that defendant procured intoxicating liquors from some other point in this State and did transport, carry and deliver the same to another person in the county of the prosecution in this State, where prohibition was in effect, and the evidence wholly failed to show what use said party to whom the liquor was delivered intended to put the same when he received it, and the question of personal use was not raised by the evidence (and need not, therefore, be discussed), the defendant is guilty under section 4 of the so-called Allison Liquor Law, Act of the Thirty-third Legislature. Prendergast, Presiding Judge, concurring, holding that even if the party receiving designed it for personal use the' law was violated. Davidson, Judge dissenting. 8. —Same—Evidence—Circumstances—Receptacle of Liquors. Where defendant was prosecuted for carrying, transporting and delivering whisky in prohibition territory for illegal purposes, there was no error in admitting testimony as to the contents of a certain valise in which it had been carried, and permitting the valise to be opened in the presence of the jury and introducing it and its contents in evidence, the same having been sufficiently identified. 9. —Same—Evidence—Intoxicating Liquor—Bottles in Evidence. Where defendant was being prosecuted for carrying, transporting and delivering whisky into prohibition territory for illegal purposes, there was no error in admitting testimony that the bottles containing the whisky and introduced in evidence in fact contained whisky. Davidson, Judge, dissenting. 10. —Same—Evidence—Circumstances—Identity of Defendant. Where, upon trial of carrying, transporting and delivering whisky in prohibition territory for illegal purposes, defendant contended that it could not be shown that he had handled a certain grip or valise containing the whisky designed for a person residing in prohibition territory, there was no error in admitting testimony that the grip was handed out by someone in the railway coach to another person who ran and threw the grip under the coach when the officers approached; it being show that the grip had defendant’s name on it and the circumstances rendered it certain that defendant was the man who handed the grip out of the coach. 11. —Same—Evidence—Res Gestae—Other Liquor. Where defendant was charged with carrying, transporting and delivering one bottle of whisky into prohibition territory for illegal purposes, and it was developed on trial that the same was carried in a certain grip owned by the defendant, there was no error in permitting the entire contents of the grip containing twelve bottles of whisky to be introduced in evidence. 12. —Same—Charge of Court—Several Offenses. Where defendant was charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction could be had if the offense was committed in either of the ways alleged in the indictment, and there was no error in so instructing the jury. Following Copping v. State, 7 Texas Grim. App., 61. 13. —Same—Several Means Alleged—Delivery. Where defendant was charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction would be authorized even if the whisky was not delivered, the evidence showing'that defendant transported and carried the same as alleged in the indictment; besides, the delivery by defendant to a go-between was a delivery to the party intended. 14. —Same—Agency—Sale. Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and merely acted as the agent of the person to whom he carried and delivered the liquor, the question, of sale of same and a violation of the law on that ground was , not involved. Harper, Judge, dissenting. ■ 15.—Same—Agency—Sufficiency of the Evidence—Use—Purpose. | Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and the proof sustained the allegations, and showed that he acted as the agent of the person to whom the liquor was delivered, the evidence wholly failing to show to what use the liquor was intended to be put when received, defendant is guilty of a i violation of section 4 of the so-called Allison Law. Prendergast, Presiding ' Judge, concurring, holding that it was immaterial for what use the liquor was i intended. Davidson, Judge, dissenting. 16.—Same—Negative Averments—Personal Use Not Involved. Where defendant was charged with carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, it was not necessary to negative any of the exceptions set out in the statute (although this was done), and if the evidence showed that defendant did either carry, transport or deliver to another in prohibition territory intoxicating liquors, the case is made out against him, unless defendant brings himself within any of the exceptions, and the question of personal use is not raised and need not be discussed. 17.—Same—Sufficiency of the Evidence—Introducing Liquors—Delivery. Where, upon trial of carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. Davidson, Judge, dissenting. 18.—Same—Personal Use—Statutes Construed. See opinion, Harper, Judge, holding as there is no testimony that the whisky carried, transported and delivered into prohibition territory was intended for personal use (that question need not be discussed), the conviction is sustained. Prendergast, Presiding Judge, holding that if defendant so carried and delivered said liquor, he was guilty regardless as to what use the person receiving it should make of it. Davidson, Judge, holding that the mere carrying, transporting and delivering of said liquor by defendant to another into prohibition territory would not be a violation of law under the Constitution of Texas, which only prohibits the sale of such liquor. [Rehearing denied November 25, 1914.—Reporter.]

Cited by 3 later decisions — most recently August 1993

3 state decisions

Relies on 35 Tex. Crim. 581 - Wright v. State · 49 Tex. Crim. 44 - Golightly v. State · 46 Tex. Crim. 229 - Atkinson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1914-11-04

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¶1I can not agree with the result reached in this case. Judge Harper holds that the facts show a sale, and therefore punishable under the charge of carrying intoxicants into local option territory. Presiding Judge Prendergast holds the facts do not show a sale but only an agency on part of appellant, and nothing else. I agree with Judge Prendergast on this phase of his concurring opinion. Appellant was charged with violating what is known as the Allison bill, the allegation being that he transported, carried and delivered to Griffin whisky in local option territory. The State's case, therefore, must rest upon these allegations. Griffin gave appellant two dollars with which to buy him two bottles of whisky, and fifty-five cents to pay or assist in paying his railroad fare to Belton or Temple and return. Appellant bought the whisky in one of the towns mentioned for Griffin with Griffin's, money. This constituted him the agent or Griffin. I do not see how, by any possible construction of this testimony, it could be correct to hold that appellant sold Griffin the whisky. If it was a sale appellant violated the local option law in Lampasas County, but he was not charged with this offense, and the facts do not support it. The authorities sustaining my views of it are found collated in Mr. Branch's work on Criminal Law, section 569. Quoting from that work: "If defendant is in no way interested on behalf of the seller, but is simply acting as agent of prosecutor, he is not guilty of making a sale." Key v. State, 37 Tex.Crim. Rep.; Reed v. State, 44 S.W. Rep., 1093; Crawford v. State, 76 S.W. Rep., 576; Blasingame v. State, 47 Tex.Crim. Rep.; Rector v. State, 90 S.W. Rep., 41; Short v. State, 49 Tex.Crim. Rep.; Bowman v. State, 35 S.W. Rep., 382; Brignon v. State, 37 Tex. Crim. 71; Kirby v. State, 46 Tex.Crim. Rep.; Way v. State,36 Tex. Crim. 40; Gaston v. State, 102 S.W. Rep., 116; Hood v. State, 35 Tex.Crim. Rep.; Crawford v. State, 58 S.W. Rep., 1006; Johnson v. State, 44 S.W. Rep., 834; Phillips v. State, 40 S.W. Rep., 270. It was also held if there is evidence that the accused bought liquor from another as agent of the purchaser, and that he was in no way interested on behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Tex.Crim. Rep.; Treue v. State, 44 S.W. Rep., 829; Strickland v. State, 47 S.W. Rep., 720; Driver v. State, 48 Tex.Crim. Rep.; Golightly v. State,49 Tex. Crim. 44; *187 Evans v. State, 55 Tex.Crim. Rep.; Wright v. State,35 Tex. Crim. 581. These authorities settle the question that this was and could not constitute a sale. If any illegality existed or could possibly arise under the facts of this case, it was that appellant bought whisky in Temple or Belton for Griffin and carried it to him at Lampasas, and was, therefore, acting as his agent. If he violated any law it is that clause of the Allison bill which prohibits transporting, carrying and delivering whisky in local option territory. Judge Prendergast holds this part of the Allison bill valid. With this view I can not concur. Some of our courts have gone far enough to say that the citizen may be punished for storing intoxicants in local option territory for illegal selling purposes, and this seems to rest upon the theory that this can be prevented because of anticipated sales to occur in the future. That question does not arise in this case, because the evidence is conclusive that the whisky belonged to Griffin and was carried by his agent, appellant, to him in Lampasas County. So we have this question: Can a citizen be punished by confinement in the penitentiary for carrying whisky into local option territory with no possibility of violating the local option law? The Allison law is dependent for its existence on the local option law. When the local option law passes out that dies for want of something to keep it alive. With whatever far-reaching power and authority the Legislature may be clothed, under the Constitution of Texas, article 16, section 20, that power is circumscribed to prohibiting selling in local option territory. There is no question, I would suppose, at this late day in Texas that this law does not authorize the punishment of the citizen for giving away whisky and can not legally — the Allison bill to the contrary notwithstanding. Under all the authorities it has been held that the giving of intoxicants in local option territory could not constitute a violation of that law. This has been held even as to giving it to minors. If the party gave to minors he would have to be punished for violation of the local option law. Atkinson v. State,46 Tex. Crim. 229; Tracy v. State, 48 Tex.Crim. Rep.; Tompkins v. State, 49 Tex.Crim. Rep.. This court has held the Legislature had no authority to authorize an election to determine whether the gift of intoxicating liquors shall be prohibited, — whether the gift was with intent to evade the law or not. Holly v. State, 14 Texas Crim. App., 505; Bottoms v. State, 73 S.W. Rep., 16; Steele v. State, 19 Texas Crim. App., 425. It was also held in Stallworth v. State, 16 Texas Crim. App., 345, that an indictment for ordinary local option violation which charges a gift charges no offense. For many cases deciding this particular phase of the law see Branch's Criminal Law, section 567. As I understand the law, viewed in the light of the constitutional guaranty and wording of section 20, article 16, the Legislature can not prohibit the citizenship of this State from conveying to his friend or giving to his friend or to his principal as his agent intoxicating liquors in local option territory so long as he does not violate some of the inhibitions with reference to sales or illegal matters of that character. An accused does not have to prove his *188 innocence; the State must prove guilt to secure a conviction. In other words, the Legislature can not make it a felony and incarcerate our citizenship in the penitentiary even in local option territory where one friend gives to another intoxicants, or where one citizen gives to another citizen intoxicants or buys it as agent of the principal; and I understand the law to be further that the Legislature can not abrogate or abolish the law of principal and agent; that the Legislature is powerless to abolish the law and doctrine of agency. If appellant was guilty, I do not understand why Griffin was not, on the theory of agency. Griffin could be an accomplice on that theory. This certainly would pass even the limit of the power of the Legislature. The principal may do through his agent what he himself may do. The Allison law authorizes the principal to carry the whisky into local option territory for his own use. I therefore agree with Judge Prendergast that appellant was only the agent of Griffin, but disagree with him as to his conclusion of the validity of the Allison bill on this question, and disagree with Judge Harper that the facts constituted a sale by appellant to Griffin.

¶2With due deference to the opinion of my brethren I respectfully enter this dissent.

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Case posture

Posture: Appeal from the District Court of Lampasas. Tried below before the Hon. John D. Robinson. Appeal from a conviction of carrying, transporting and delivering intoxicating liquors into local option territory for illegal purposes; penalty, one year imprisonment in the penitentiary. The opinion states the case.
Subsequent history: Appeal from the District Court of Lampasas. Tried below before the Hon. John D. Robinson. Appeal from a conviction of carrying, transporting and delivering intoxicating liquors into local option territory for illegal purposes; penalty, one year imprisonment in the penitentiary.

Source: CourtListener

Court

Court of Criminal Appeals of Texas

Parallel citations

171 S.W 211