Stevens v. State (150 S.W. 942, 1912)

DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days imprisonment in the county jail.

The state’s cáse is, in substance, that appellant sold Wilson, the alleged purchaser, a pint of whisky under the following circumstances: On or about March 5, 1911, on Sunday, Wilson got a pint of whisky from defendant and paid him $1 for it. Appellant and Ofer Ridings came past the house of the witness Wilson on horseback, and, upon reaching the point where Wilson and Lee Abbott were, the defendant said, “I have that whisky now.” Wilson and appellant walked off a short distance, and appellant gave him the bottle of whisky from his pocket, and Wilson then went back and borrowed a dollar from Abbott with which to-pay for the whisky, and gave it to appellant. Upon cross-examination Wilson explained the matter in this way: “When he said ‘that’ whisky, I suppose he meant the whis-ky I had talked to him about a day or two or three days before here in Bonham. We were in Bonham, and I asked defendant if he could get me some whisky. He said he-didn’t know anybody here he could get it from, but that he was going to Sowell’s Bluff on Red river that night and could get it from a fellow there; that, if he could get it, he would bring it to- me. This was the next time I saw him after that.” Ridings testified that he was in Bonham with Wilson the day when Wilson asked defendant if he could get him some whisky. He narrates the conversation about as did Wilson. After going home that night, Ridings and defendant went to Sowell’s Bluff and went to the home of a man named Oranson and inquired if they could get some whisky, and Oranson informed them he was out, but Charley Jones was camped on the road across the river, between the ferry and Gibson’s sawmill, and that he could get it from him. Ridings and appellant crossed the river and went to Charley Jones’ tent, and Ridings bought one pint of whisky and appellant bought two. They paid $1 a bottle for the whisky. They were pint bottles. The following day about noon appellant and the witness Ridings started to the residence of Ridings’ brother and went by Wilson’s home. As they rode up to Wilson’s, appellant said, “I have that whisky now.” They went off a few ■ steps, and appellant gave Wilson a pint of whisky. Wilson came back where Abbott and witness were and requested Abbott to let him have a dollar, which Abbott did. This dollar was given to defendant, and the parties separated. This is the substance of the state’s case.

Under this theory the court charged the jury that, if they should find from the evidence that defendant delivered the whisky in question to Wilson, but in doing so he acted as agent of Wilson and procured it as a friendly act towards Wilson, and had no monetary interest in the delivery, or if they had a reasonable doubt as to same, they should acquit him. To meet this phase of the case the state introduced Graves, who testified he was express agent of the American Express Company at Ravenna, Tex.; that he took charge of the office there in September, 1911. This sale occurred long prior to that time, to wit, about March 5, 1911. The witness further testified he never lived at Ravenna before, and when he went there he found the books that he then had before him as the record of the express office; that he receipted for it; that it is the book in which the express company kept a record of receipts and disposition of intoxicating liquors. He says: “I do not know who made the entries before I came there, as I was not there and did not see them made. I have made and correctly kept them since September, 1911. I did not see any of the entries made before September, and don’t know who made them, and don’t know of my own knowledge anything about their correctness. I never saw defendant write and do not know his handwriting. In fact, I do not know him. This book has a column showing date of arrival of shipments, one to show where shipped from, one to show contents of package, one to show the weight of packages, one to show date of delivery of package, one where the party signs his name when package is delivered to him, the party to whom it is consigned, and one for the signature of the party identifying the party signing for the package if the agent does not know him. I find the following entries: ‘Date of receipt of package, March 2d. Place shipped from, Kansas City. Contents of package, 2 gal. liq. Weight of package, 26 pounds. To whom consigned, Clide Stevens. Date of delivery, March 4th. Signature of party receiving package, Clide Stevens.’ ”

A bill of exceptions was reserved to the testimony of Graves with reference to the book and its contents, etc. The bill is full and ample, setting out many grounds of objection, among others that it is irrelevant, immaterial, and hearsay, because the state has not in any manner connected the defendant with such entry, either by proving his signature or by showing that he received such package, or in any way connecting the defendant with such transaction; because the execution of the written document by defendant was not proven; and because the book was not shown to have been correctly kept, and it was not shown who kept it, and it was not shown that the person or persons who did make and keep such book at the times of the entries sought to be introduced was out of the jurisdiction of the court. We are of opinion that this testimony was improperly admitted. This error comes within the rule laid down by this court in an opinion written by Judge Prendergast in the case of McConico v. State, 61 Tex. Cr. R. 48, 183 S. W. 1047. See, also, Felder v. State, 23 Tex. App. 486, 5 S. W. 145, 59 Am. Rep. 777; Cathey v. Railway Co. (Civ. App.) 124 S. W. 217; Flynt Granite Co. v. Darling, 178 Fed. 163, 101 C. C. A. 483; Patterson v. Railway (Civ. App.) 126 S. W. 336; Delaney v. Framington Co., 202 Mass. 359, 88 N. E. 773; King v. W. U. T. Co., 84 S. C. 73, 65 S. E. 944; M., K. & T. Ry. v. Davis, 24 Okl. 677, 104 Pac. 34, 24 D. R. A. (N. S.) 866; North Birmingham Lumber Co. v. Sims, 157 Ala. 595, 48 South. 84. This evidence was introduced to meet and overcome, as far as the state could, the question of agency. In the attitude in which the bill presents the matter, however, the testimony is not admissible. There is no evidence that appellant had written his name in the book, and no attempt to connect him' with the entries in the book. This does not infringe the rule laid down in 139 S. W. 1141.

There are other grounds urged by appellant that are well taken. The authorities, cited discuss those questions, and it is not necessary to review them.

The judgment is reversed, and the cause is remanded.