Bush v. Republic Texas
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 455 |
| Parties | HILLERY B. BUSH v. THE REPUBLIC OF TEXAS |
| Court | Texas Supreme Court |
Case Reserved and Certified from Fannin District Court.
In an indicatment for a statutory offense, the statute must be strictly pursued, and if the description of the offense embraced in the statute be departed from in any material respect, or if any ingredient in the definition of the offense be omitted, the indictment will be bad. [ Post, 608; 8 Tex. 255;13 Id. 27;28 Id. 626.]
An indictment should allege the facts necessary to constitute the offense charged. by averments direct, positive and certain, and not by way of argument and inference.
If a statute prohibits an act, under a penalty to be enforced by indictment, and a subsequent statute gives a qui tam action for such penalty, the latter is merely cumulative of, and does not repeal, the remedy given by the former statute.
At the spring term, 1845, Hillery B. Bush was indicted for keeping a tippling house, by retailing spirituous liquors in quantities less than a quart, without having first obtained a license therefor. He was found guilty by the jury, and a motion was then made in arrest of judgment, which was overruled by the court and judgment entered against the defendant for $1,000 fine and imprisonment for three months; but the questions arising on the motion were reserved by the judge for the revision of the supreme court.
The grounds upon which the motion is predicated are fully stated in the opinion of the court.
Everts, for appellant.
The section of the law upon which this indictment is founded embraces no other persons, than those who may be engaged in the occupation of keeping a tavern, tippling house, ordinary, or some establishment of entertainment, or for the sale of spirituous liquors; and it is not averred in said indictment that Bush was engaged in the occupation of any one pursuit specified in the act. If any person who should in any manner dispose of any spirituous liquors in a less quantity than a quart, without license, was intended to be embraced in the act, then the defendant might perhaps be properly convicted. But such is not the intention and meaning of the act. None are embraced in it but such as are engaged in keeping a tavern or some establishment of entertainment, or for the sale of liquors, etc., and who, being thus engaged, shall sell by a less quantity than a quart, without license, thereby defrauding the government of its revenue.
If this be the true construction of the act, it would then be necessary, on the trial, to prove in the first place that the defendant was, at the time of the commission of the offense, engaged in some one of the occupations mentioned. If it would be necessary to prove that fact, it follows that it must be so charged in the indictment.
This is a statutory offense, and as the description of the offense in the indictment is not in accordance with the statute, it is bad. Chitty Crim. Law, pp. 281, 282; Archbold, p. 51; 2 East, 343; 2 Hale, 170; 8 Term, 536; 1 Blackf. 308. The indictment must follow the words of the statute. 3 Bac. p. 569; 3 Jac. 408.
The act upon which the indictment is founded was repealed before the finding, by the act of 16th January, 1843, “To provide for the more certain collection of license taxes.” By the 2d section of this act it is provided that if any person shall engage in any vocation which by existing laws is subject to a license tax, he shall be liable to pay the penalty therein prescribed by a qui tam action before a justice of the peace or in the district court. The last section repeals all conflicting laws. 7 Laws Texas, p. 40.
The indictment does not show what kind of spirituous liquors was sold, and is therefore a departure from the statute.
Attorney General, for appellee, contended that the indictment conformed to the statute, and that the penalty prescribed by the 2d second section of the act “to provide for the more certain collection of license taxes” was merely cumulative of that prescribed by the act upon which the indictment was founded, and was not intended to repeal it.
Hillery B. Bush was indicted at the spring term, 1845, of the district court, under the second section of the act of 5th February, 1840 (4 Stat. 99, 22), for keeping a tippling house.
The jury found the defendant “guilty,” and a motion was made in arrest of judgment. The motion was refused, and the questions arising thereon as to the legal sufficiency of the indictment were reserved by the judge for revision here.
The indictment charges that the defendant, on a day specified, “kept a tippling house, by retailing spirituous liquors in quantities less than one quart, without having first obtained a license therefor.”
By the motion in arrest of judgment it is objected to the indictment that:
2d. It charges the retailing of spirituous liquors.
3d. There is no averment in said indictment that the defendant kept a tavern, ordinary tippling house or other description of establishment for the sale of spirituous liquors by retail.
4th. There is no description of the liquors in said indictment.
5th. There is no person named in the indictment to whom said spirituous liquors were sold.”
The statute provides that any person “who shall keep a tavern, ordinary tippling house or other description of establishment for entertainment or for the sale of spirituous liquors by retail, and shall sell or otherwise dispose of wine, rum, brandy, whisky, cordials or any other description of spirituous liquors, in smaller quantities than one quart, without having first obtained a license therefor, shall be liable to an indictment for keeping a tippling house.”
It will be seen that the definition of the offense created by the statute is made up of several ingredients. To constitute the offense the party accused, 1st, must keep one of the “description of establishments” named in the statute; that is, a “tavern, ordinary tippling house or other description of establishment for entertainment or for the sale of spirituous liquors by retail;” and 2d, he must “sell, deliver or otherwise dispose of wine, rum, brandy, whisky or (some) other description of spirituous liquors in smaller quantities than one quart;” and 3d, he must so keep the “establishment” and sell the liquors “without having first obtained a license therefor.” When these several ingredients concur, the offense is complete; but if either be wanting in the description of the offense, the indictment must be defective. No principle in the administration of criminal jurisprudence is better settled than that in an indictment for a statutory offense, the statute must be strictly pursued. It is a general rule that “the indictment must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it.” “It is in every case desirable to attend with the greatest nicety to the words contained in the act, for no others can be so proper to describe the crime.” 1 Chit....
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