Opinion
No. 8379.
Decided April 9, 1924. Rehearing denied June 11, 1924.
1. — Possessing Intoxicating Liquor for the Purpose of Sale — Indictment — Negativing Exceptions.
The contention of appellant in his argument to the effect that the exceptions to the liquor law are part of the substantive description of the offense, and therefore the indictment failing to negative such exceptions was defective, is untenable, and the exceptions thereto were correctly overruled. Distinguishing: Rice v. State, 38 S.W. Rep., 801, and other cases.
2. — Same — Evidence — Confession.
Where the bill of exceptions in the record which complains of the introduction of a confession made by the appellant does not set out the ground of exceptions, the same cannot be considered, and the evidence being sufficient under proper charge of the court to sustain the conviction, there is no reversible error.
3. — Same — Rehearing — Presumption.
The question of presumption arising from the possession of more than one quart of intoxicating liquor, seems in no way involved in the instant case.
4. — Same — Negativing Exceptions — Indictment — Rule Stated.
The rule that when the exception in a statute is not made a part of the definition of the offense, but is contained in a separate statute or article thereof, it is not necessary to negative such exception in the indictment charging the offense, — has prevailed in this court and others from a time long anterior to the adoption of the Eighteenth Amendment to the Constitution of the United States, or to the adoption of amended section 20, article 16, of the Texas Constitution.
5. — Same — Legislative Action — Exceptions in Statute.
This court is unable to follow learned counsel in their strenuous insistence that the Legislature was without power to place the exceptions in a separate article or section of the statute, and is not cited to authority which by direction or analogy supports such contention, and the motion for rehearing must be overruled.
Appeal from the District Court of Fannin. Tried below before the Honorable C.A. Wheeler, special judge.
Appeal from a conviction of unlawfully possessing intoxicating liquor for the purpose of sale.
The opinion states the case.
Sturgeon, Sturgeon West, and Burgess, Owsley, Storey Stewart, for appellant. — On question of negativing exceptions in indictment: Pospishel v. State, 255 S.W. Rep., 738; Osborne v. State, 93 Tex.Crim. Rep.; Laminack v. State, 93 Tex. Crim. 238; Travino v. State, 92 id., 140; Mayo v. State, 92 id., 624, and cases stated in opinion.
Tom Garrard, Attorney for the State, and Grover C. Morris, Assistant Attorney for the State. — Cited: Slack v. State, 136 S.W. Rep., 1073; Atkinson v. State, 46 Tex.Crim. Rep..
Appellant was convicted in the District Court of Fannin County of possessing intoxicating liquors for purposes of sale, and his punishment fixed at one year in the penitentiary.
The questions presented herein are mainly those raised and discussed in Walker v. State, No. 8212, opinion on April 2, 1924. In the instant case, in his argument to the effect that the exceptions to the liquor law are part of the substantive description of the offense and therefore the indictment failing to negative such exceptions was defective, appellant cites and quotes from Rice v. State, 38 S.W. Rep., 801. Said case was for statutory rape and the indictment failing to negative the fact that the prosecutrix was the wife of the accused, was held fatally defective. To us it seems plain from a reading of the statute there involved which forbade carnal knowledge of a female other than the wife of the accused if she be under a named age, that to describe the offense in the indictment it should be affirmatively alleged that the injured female was not the wife of the accused; but the court in its opinion in the Rice case, supra, rested same on the proposition that the so-called exception was a part of the enacting clause in the statute. We quote from said opinion:
"It is different where the exception is not contained in the enacting clause, but in a different, substantive clause, subsequent to the enacting clause."
We think the rule is met if the exception be in a separate section either prior or subsequent to the enacting clause. Appellant further cites Colchell v. State, 23 Texas Crim. App., 584. The opinion in that case is also based upon the proposition that the exceptions to the gaming statute were a part of the enacting clause and should be negatived for that reason. He also cites Williamson v. State, 55 S.W. Rep., 568. This case is one similar in principle to the case of Hewitt v. State, 25 Tex. 722 [ 25 Tex. 722], which is discussed at some length in the opinion in Walker v. State, supra. The question was that one who was charged with pursuing an occupation without a license, was not sufficiently charged in the indictment unless it be alleged that his pursuing said occupation was without a license. Potts v. State, 74 S.W. Rep., 31 is also relied upon by appellant. This case is exactly like the Williamson and Hewitt cases above mentioned and is not in point in the instant case. The pursuit of a useful occupation not inherently harmful may be regulated by statute requiring that a license or occupation tax thereon be fixed and paid, and it would be manifest that to merely charge one with pursuing such occupation would charge him with no offense, and that in order to insert or set out that which is absolutely necessary to an allegation of the gist of the offense, it should be stated that the pursuit of such occupation was without a license. Fleeks v. State, 83 S.W. Rep., 381, is also cited. That case was reversed because the statute under which the prosecution was brought was held to be repealed by a subsequent statute, and we find nothing in it sustaining appellant's contention. Thweatt v. State, 95 S.W. Rep., 517, is referred to. This is a case brought under the law which was held to have repealed a former statute in Fleeks v. State, supra. In the Thweatt case the court held it necessary to negative the exceptions set out in the statute referred to because they were contained in the enacting clause. We are now discussing that proposition. Prior to the 1921 amendment to the Dean Law we held the same thing with regard to indictments for the violation of said law. Lowery v. State, 79 Tex. Crim. 382, 185 S.W. Rep., 7, is cited. In that case this court held that what was claimed to be an exception and contained in the enacting clause, was no more than a statutory provision fixing matters which might be pleaded as a defense, and that it was not necessary that same be negatived in the indictment.
There is but one bill of exceptions in this record which complains of the introduction of a confession made by appellant. No ground of the exception is set out in the bill. We have examined the confession carefully and observe nothing in it which supports any legal ground of objection which might be made.
The evidence supports the charge. No error appearing in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING. June 11, 1924.
Appellant files a lengthy brief showing much effort and we have carefully examined the same. The question of the presumption arising from the possession of more than a quart of intoxicating liquor, seems in no way involved in the instant case and we regret our inability to see any application of appellant's argument and discussion of authorities applicable to that proposition.
The rule that when the exception in a statute is not made a part of the definition of the offense, but is contained in a separate statute or article thereof, it is not necessary to negative such exception in an indictment charging the offense, — has prevailed in this court and others from a time long anterior to the adoption of the Eighteenth amendment or to the adoption of amended Sec. 20, Art. 16 of our State Constitution, and the principle has but been followed by us in applying it to the indictment herein.
We are not able to follow learned counsel in their strenuous insistence that the Legislature was without power to place the exception in a separate article or section of the statute; it being insisted that it was erroneously so placed because in the amendment as adopted it was set out in the same paragraph. We are cited to no authorities which by direction or by analogy support such contention. Constitutions announce principles. Statutes apply them. Amended Sec. 20, Art. 16 of our Constitution declares that all sales, etc., of intoxicating liquors are prohibited save when same are for medicinal, mechanical, sacramental or scientific purposes, and said amended section expressly directs that the Legislature shall make laws to enforce this section, and also specifically grants to the Legislature power to pass any laws additional to or in aid of the provisions named in the amendment, which the legislature may deem advisable.
The argument of appellant is interesting, but it hardly seems necessary for us to say that nothing in the placing of the exception in a separate section of the statute interferes with the right of trial by jury, or takes from the accused any of the presumptions arising in all criminal cases under our statutes. If the State by negative averment had pleaded the exceptions, it would not be required to prove such exceptions under all our authorities. Appellant would derive no substantial benefit in the matter of presumptions. If then in any case the burden of proof be upon him who asserts himself within one of the exceptions, — what could it profit him whether the exception be or be not negatived in the indictment? Presumptions are creatures of statute solely and may be given or taken away by the Legislature, but we deem a discussion of such matters purely dicta.
We have considered as far as we can apply them the arguments of appellant and the authorities cited, but believe the case properly decided in the original opinion, and the motion for rehearing is overruled.
Overruled.