Opinion
No. 4240.
Decided June 19, 1909. Rehearing denied October 13, 1909.
Local Option — Sufficiency of the Evidence.
Where, upon trial of a violation of the local option law, the State's testimony showed a sale, and that of the defendant an order for the whisky, the matter was a question of fact for the jury, and the conviction will not be disturbed.
Appeal from the County Court of Lamar. Tried below before the Hon. Leslie Hardison.
Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail.
The opinion states the case.
E.P. Scott, for appellant.
F.J. McCord, Assistant Attorney-General, for the State.
Appellant appeals from a conviction had in the County Court of Lamar County on January 8, 1909, wherein he was charged with the unlawful sale of intoxicating liquors in said county. The case was tried before the court without the intervention of a jury, and practically the only question to be considered is the sufficiency of the evidence. The testimony of the prosecuting witness, Herman Sick, showed that appellant came to his place of business and asked if he, witness, wanted some good whisky and showed him a list of liquors he had and said that "Rye" whisky was good, and if he wanted two quarts he would bring it to him. That about two days after this appellant came to his shop, brought a package containing two quarts of whisky and carried it behind a curtain where he, witness, changes his clothes, and when he came out he said, "It will cost you $2.80." Nothing was said about ordering any whisky; that he did not know where appellant got the whisky and knew nothing about his ordering whisky. Appellant on the other hand claimed, in substance, that he had ordered the whisky for witness through the Paris Liquor Company at Texarkana, and that same had been sent direct from Texarkana on such order. There was considerable evidence offered by appellant tending to sustain his contention. It was shown that a package supposed to contain liquor arrived at the express office at Paris consigned to Sick, and that this was obtained by appellant, but that Sick never appeared at the express office and denied having given any order on the express office for same. The case is essentially one of fact and after hearing all the facts the court found against the contention of the appellant. This judgment of the court is entitled to respect, and if there is evidence in the record which fairly considered would support the court's judgment we should sustain same. We think there is abundant evidence to sustain the judgment of conviction. It is therefore ordered that the judgment be and the same is hereby affirmed.
Affirmed.
[Rehearing denied October 13, 1909.]