Lucio v. State

Counsel

Perryman Bullitt, and W.C. Oliver, for appellant. — The court erred in charging the jury that the burden of proof was on the defendant. Appellant submits this proposition: That under the law of the State he is presumed to be innocent until his guilt is established by the evidence, and that no guilt is established by showing that he engaged in a lawful business. Instead of the presumption being that he had no authority to pursue said business, the presumption of law is that he had such authority. The very fact to be proven against him was that he did not have a license. Whether he had a license or not, was not peculiarly within defendant's knowledge, but was equally within the knowledge of the State and susceptible of proof by the State, so that, the reason generally given for presuming defendants guilt until they prove their innocence in other States, in cases like this, did not and does not exist. The court erred in admitting the copies of the records from the United States internal revenue office. First. — The fact to be proven by the State to make out a prima facie case against him was the payment of the United States internal revenue tax as a seller of spirituous liquors. Second. — The list offered and admitted in evidence on behalf of the State was hearsay. Third. — The list offered and admitted was secondary evidence. Fourth. — The list offered was a mere copy of an original, which original was itself hearsay and secondary evidence. Fifth. — The statute which makes the fact of payment of the United States tax prima facie evidence that the party is engaged in selling spirituous liquors, does not alter the rules of evidence as to how proof of such payment should be made. The court erred in admitting in evidence the order of the Commissioners' Court showing that they had levied an occupation tax in January, 1893. That the tax levy of the county tax equal to one-half of the State tax, made by the Commissioners' Court of Harris County, in January, 1893, ceased to be operative when the act of the legislature regulating the sale of spirituous liquors was repealed by the present law, which took effect in August, 1893. Said tax levy was therefore not admissible under the present occupation tax. The charge of the court was radically defective in failing to charge the jury the law on circumstantial evidence. The State's only evidence that the defendant engaged in the occupation of selling spirituous liquors was the circumstance that his name appeared on a list of names of those who had paid the United States tax, which list was a record in the United States Internal Revenue Collector's office, there being no direct and positive evidence that the defendant ever paid the United States internal revenue tax as a dealer in spirituous liquors. The circumstance of his name appearing on said list was merely a fact tending to prove such payment. The defendant and appellant relied on affirmative evidence as to what his occupation was, and the negative testimony of those conversant with his business was that they had never seen him sell spirituous or vinous liquors or medicated bitters, nor anything but beer and family groceries. The fact to be proved against him was the engaging in an occupation which was necessarily a continuous thing, and more or less public. Defendant also relied on the presumption of innocence to be considered in his behalf. The State depended upon the legal presumption of payment of the United States internal revenue tax, from the fact that his name was on said list. If the State sufficiently proved that he paid the United States internal revenue tax, which was done merely by proving the fact that his name was on said list, it did not prove the actual payment of said United States internal revenue tax by him, otherwise than by said list. If the evidence was sufficient to show that he paid the United States tax, the testimony of defendant was sufficient to overcome such prima facie case and raise a reasonable doubt of defendant's guilt. Mann Trice, Assistant Attorney-General, for the State.