Anderson v. State, 18629.

• Citation: 105 S.W.2d 258
• Decision Date: 09 December 1936
• Docket Number: No. 18629.,18629.
• Parties: ANDERSON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

105 S.W.2d 258

ANDERSON v. STATE.

No. 18629.

Court of Criminal Appeals of Texas.

December 9, 1936.

State's Rehearing Denied February 24, 1937.

Appeal from County Court at Law No. 2, Harris County; Frank Williford, Jr., Judge.

Mrs. Sterling D. Anderson was convicted of selling liquor in a package permit store on Sunday, and she appeals.

Reversed and prosecution ordered dismissed.

H. J. Bernard and B. L. Palmer, both of Houston, for appellant.

K. C. Barkley, Cr. Dist. Atty., and A. H. Krichamer, Asst. Dist. Atty., both of Houston, and E. F. Fruechte, Atty. Texas Liquor Control Board, and Lloyd W. Davidson, State's Atty., both of Austin, for the State.

LATTIMORE, Judge.

Conviction for selling liquor in a package permit store on Sunday; punishment, a fine of $100.

Section 25 of art. 1, chap. 467, Acts Second Called Session, 44th Legislature (Vernon's Ann.P.C. art. 666 — 25), reads as follows: "No sale or delivery of liquor shall be made on or from the premises of the holder of any permit (except upon the prescription of a duly licensed physician): * * * On Sundays."

The information against this appellant charged her as follows: "Did on Sunday * * * sell liquor to A. M. Douglass on said premises so known as and located * * * in the city of Houston, Harris County, Texas, * * * the said package store permit so issued being then and there in full force and effect."

The exception observed in the quoted part of the statute above is in no way negatived. In our opinion, the information is fatally defective.

It has been the rule in this State without exception, so far as we have been able to observe, that where an offense is defined by statute, all the essential elements of the offense must be alleged in the indictment. We quote from the syllabus in Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801, as follows: "Where the statute creating an offense, in the body thereof, or as a part of the enacting clause, contains an exception so that the one cannot be read without the other, the exception must be negatived in the indictment. And, if the exception itself be incorporated in the general clause, then the party relying on the general clause must, in pleading, state it, together with the exception."

This rule has been followed uniformly. See Thweatt v. State, 49 Tex.Cr.R. 617, 95 S.W. 517; Brown v. State, 74 Tex.Cr. R. 498, 168 S.W. 861; Reeves v. State, 88 Tex.Cr.R. 444, 227 S.W. 668; Ford v. State, 105 Tex.Cr.R. 114, 286 S.W. 1089.

We are not unaware of the fact that section 9, art. 1, of said chap. 467, supra (Vernon's Ann.P.C. art. 666 — 9), provides in general terms that it shall not be necessary for any information complaint, or indictment to negative any exception contained in this act concerning any prohibited act, etc., but this court has uniformly held that where the exception is written in the body of the law, and, as said in some of the cases, is made part of the enacting clause of the statute itself, we cannot give application to the terms of section 9, supra. The exception is so clearly made part of the offense, and is so plainly...