Bell v. State

• Citation: 137 S.W. 670
• Parties: BELL v. STATE.
• Decision Date: 03 May 1911
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

137 S.W. 670

BELL v. STATE.

Court of Criminal Appeals of Texas.

May 3, 1911.

Appeal from District Court, Camp County; R. W. Simpson, Judge.

Lonnie Bell was convicted of selling intoxicants in violation of the local option law, and he appeals. Affirmed.

M. M. Smith, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case the appellant was prosecuted for pursuing the occupation of selling intoxicating liquor in Camp county; local option being in force in said county. Upon a trial he was convicted, and his punishment assessed at three years' confinement in the penitentiary.

The only assignment of error is that "the verdict and judgment is contrary to the law and the evidence." The indictment is in accordance with the form approved by this court in Mizell v. State, 128 S. W. 125. Local option is shown to be in full force in said county, a number of sales being proven; and, the court having properly submitted the offense charged, the judgment, in our opinion, should be affirmed. However, under the contention that the evidence is insufficient to sustain a conviction, the contention is made that, although the state proved a number of sales of whisky, yet, as the state did not show that defendant did not have a license to sell on prescription, and said sales were not made on prescription, the conviction should be set aside. The evidence would exclude any such idea, as the whisky was sold in the highways and byways, and in dark corners, but we hold that it is not necessary or incumbent upon the state to snow any of these negative matters. Such provisions are matters of defense, and if a sale is made under such conditions, it being peculiarly within the knowledge of the defendant, it is incumbent upon him to make the proof. When the state has shown that local option is in force, that defendant has made sales of intoxicating liquors, and is pursuing that business, or occupation, it has made a prima facie case.

In the case of State v. Duke, 42 Tex. 455, when our Supreme Court had jurisdiction of criminal matters, it held that under the peculiar wording of the statute at that time it was necessary in the indictment to make the negative averments, but these negative matters "being averments of facts peculiarly within defendant's knowledge, so that he would have no difficulty in showing the truth, no proof of such averments on the part of the state would be required. In the absence of proof, the presumption would be against the existence of facts so exceptional in their nature." This holding is approved in Summerlin v. State, 3 Tex. App. 446; the court saying: "That defendant was not a peace officer at the time, being an averment of fact peculiarly within defendant's knowledge, so that he could have no difficulty in showing the truth, no proof of such averments on the part of the state would be required" —citing Commonwealth v. Hart, 11 Cush. (Mass.) 130. In Stoneham v. State, 3 Tex. App. 594, this court holds: "When the state has adduced sufficient proof to sustain a conviction, the accused has the burden of establishing any excuse, justification, or explanation." Again, in Leatherwood v. State, 6 Tex. App. 247, the ruling in Duke v. State, supra, is approved; the decision saying: "The information attempts, by proper negative averments, to allege that accused did not come within any of the exceptions mentioned in the statute. It is intimated in the motion for a new trial that the state failed to prove that the defendant did not come within these exceptions. This position is untenable." And it is held that it is not required that the negative averments should be proved by the state. See, also, Lewis v. State, 7 Tex. App. 567; Leonard v. State, 7 Tex. App. 417.

Our Penal Code (White's Ann. Pen. Code, art. 400) provides that it shall be unlawful to sell intoxicating liquors to a minor, except upon the written consent of the parent; all being embodied in the same article. The contention was made that the exception being a part of the same article of the Code, and not in a separate provision, it was incumbent upon the state to prove want of consent. In Reynolds v. State, 32 Tex. Cr. R. 37, 22 S. W. 19, Judge Hurt, speaking for the court, says: "The second assignment presents the question, Must the state prove the accused did not have the written order from the parent or guardian, or must the accused produce or establish the fact that he had such order? After mature reflection we are of opinion that the burden is on the accused." This is approved in Jones v. State, 32 Tex. Cr. R. 109, 22 S. W. 149; Kuhn v. State, 34 Tex. Cr. R. 85, 29 S. W. 272; Partin v. State, 30 S. W. 1067.

In volume 4 of the second edition of Am. & Eng. Encyclopedia of Law, we find the following text laid down, citing the authorities named: "Upon a charge of a sale of liquors or merchandise without a license as required by law, the burden has been held to be on the defendant to show a license; for, if he have a license, that is a fact peculiarly within his knowledge, as proof of it can be more easily made than proof of the negative can be by the prosecution. Farrall v. State, 32 Ala. 557; Williams v. State, 35 Ark. 430; Sharp v. State, 17 Ga. 290; Conyers v. State, 50 Ga. 103, 15 Am. Rep. 686; Noecker v. People, 91 Ill. 468; Gunnarssohn v. Sterling, 92 Ill. 569; Flora v. Lee, 5 Ill. App. 629; Shearer v. State, 7 Blackf. (Ind.) 99; Howard v. State, 5 Ind. 516; Taylor v. State, 49 Ind. 555; State v. Stapp, 29 Iowa, 551; State v. Curley, 33 Iowa, 359; Haskill v. Com., 3 B. Mon. (Ky.) 342; State v. Woodward, 34 Me. 293; State v. Crowell, 25 Me. 171; Smith v. Adrian, 1 Mich. 495; State v. Schmail, 25 Minn. 370; Easterling v. State, 35 Miss. 210; Schmidt v. State, 14 Mo. 137; State v. Edwards, 60 Mo. 490; State v. Foster, 23 N. H. 348, 55 Am. Dec. 191; State v. McGlynn, 34 N. H. 422; Bliss v. Brainard, 41 N. H. 256; State v. Morrison, 14 N. C. 299; State v. Cutting, 3 Or. 260; State v. Geuing, 1 McCord Law (S. C.) 573; Information against Oliver, 21 S. C. 318, 53 Am. Rep. 681; Matter of Barrett, 28 U. C. Q. B. 559; Ex parte Parks, 8 New Bruns. 237."

Again the same work says: "Where the means of proving the negative are not within the power of the party alleging it, but all the proof on the subject is within the control of the opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment from the fact that such opposite party withholds or does not produce the proof that it is within his hands, if it exists, that the negative is not true; citing Sunderland Marine Ins. Co. v. Kearney, 16 Q. B. 925 (Eng.) 71 E. C. L. 925; Rex. v. Burdett, 5 B. & Ald. 140 (Eng.) 6 E. C. L. 423; Rex v. Turner (Eng.) 5 M. & S. 206; Small v. Belyea (Can.) 24 New Bruns. 16; Great Western R. Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199; State v. Crowell, 25 Me. 171; People v. Swineford, 77 Mich. 573 , citing 2 Am. & Eng. Encyc. of Law (1st Ed.) 652; State v. Lipscomb, 52 Mo. 32; State v. Richeson, 45 Mo. 575; State v. McDuffie, 107 N. C. 885 ; Govan v. Cushing, 111 N. C. 458 ."

In Cyc. it is said: "Where the subject-matter of a negative averment in the indictment, or a fact relied upon by defendant as a justification or excuse relates to him personally or otherwise, lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him"—citing Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586, and authorities from nearly every state in the Union. In the Ake Case, supra, is a collation of the authorities on this subject.

Article 52 of our Penal Code reads: "On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission." Under this article of White's Penal Code will be found cited numerous authorities in which it is held that these are matters of defense, and it is not incumbent upon the state to make any proof in regard thereto. Not only is this the rule in this state, but from an examination of the authorities we find that this is true of almost every state in the Union.

In the case of People v. Boo Doo Hong, 122 Cal. 607, 55 Pac. 403, the Supreme Court of that state holds: "At the trial uncontradicted evidence was introduced by the prosecution sufficiently showing that for several months prior to the filing of the information defendant had been practicing medicine at Red Bluff, in the county of Tehama (People v. Lee Wah, 71 Cal. 80 ), but no evidence was introduced on either side showing, or tending to show, that defendant had or had not a certificate to so practice, as required by law. Stats. 1875-76, p. 792; St. 1877-78, p. 918. And at the conclusion of the evidence the court instructed the jury quite fully upon all the questions of law involved in the case, and, among other things, told them, in effect, that the burden was upon the defendant to establish that he had a certificate to practice medicine, as provided by law, and, if he failed to prove that he had such certificate, then it must be taken as true that he had not procured a certificate to so practice medicine.

"It is contended for appellant that the said instruction was erroneous and misleading, and that the verdict was not justified by the evidence, because in a criminal action the defendant is presumed to be innocent, until he is proved guilty beyond a reasonable doubt, and this presumption continues through the entire trial, and the burden is upon the people to establish his guilt by proving every material allegation of the information; and that, as the information charged that defendant had practiced medicine without having a certificate to do so, it devolved upon the people to prove that fact, and having entirely failed to offer any such proof he ought not to have been convicted, and his ...