Doucette v. State, 29839
| Decision Date | 29 October 1958 |
| Docket Number | No. 29839,29839 |
| Citation | 166 Tex.Crim. 596,317 S.W.2d 200 |
| Parties | Peter DOUCETTE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Patterson, McDaniel & Moore, by James H. Parrish, Houston, for appellant.
Dan Walton, Dist. Atty., Eugene Brady, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the sale of a pistol to a minor under Article 489, Vernon's Ann.P.C.; the punishment, a fine of $100.00.
Our prior opinions are withdrawn.
Appellant plead guilty, and the sole question here presented is whether or not Article 489a, V.A.P.C., repealed Article 489, V.A.P.C., insofar as the latter denounces the offense here charged. The State contends that the caption of Article 489a does not contain sufficient notice that the act itself prescribed a penalty for the sale of a pistol to a minor and is therefore invalid by virtue of Article III, Section 35, Constitution of Texas, Vernon's Ann.St. and that Article 489, V.A.P.C., remains in force.
We have examined the caption of Article 489a in the light of such contention and fail to find therein any intimation that the act itself purported to legislate upon the offense here involved. We find therein no mention of minors and agree with the State's contention.
The judgment is affirmed.
In order to affirm this conviction it is necessary to hold that Art. 489a, Vernon's P.C., is not a valid law of this state and never has been. My brethren so hold, and, as a reason for that holding, say that the caption to the act embodying Art. 489a is insufficient to meet the constitutional demand that it give notice of the subject the legislature dealt with in the act. Art. 3, Sec. 35, Const. of Texas.
To that conclusion I can not and do not agree.
Art. 489a, Vernon's P.C., is now, and has been since its enactment, a valid statute and the only statute of this state which prohibits and makes unlawful the sale of a pistol to a minor.
The instant prosecution was not brought under that statute but was brought and maintained under Art. 489, P.C., enacted in 1897, which made it unlawful for one to sell a pistol to a minor only without the written consent of the parent or guardian of the minor.
In affirming this conviction my brethren hold that Art. 489, P.C., is in full force and effect. To ascertain if that be true, that statute will now be examined:
Art. 489, P.C. 1 , makes it unlawful to knowingly sell a pistol to a minor without the written consent of the parent or guardian of such minor. That statute does not prohibit or make unlawful the sale of a pistol to a minor; it is only unlawful to make such sale without the consent of the parent or guardian. It is perfectly legal and lawful under that statute to sell a pistol to a minor with the consent of the parent or guardian.
Art. 489, P.C., is not, therefore, a prohibitory statute. It is a regulatory statute, providing a means whereby a pistol may be purchased by a minor.
The absence of consent of the parent or guardian to the sale is the gist of the offense. That statute can not be construed as prohibitory in making unlawful the sale of a pistol to a minor, because if it were the parent or guardian could nullify it by giving consent.
Our penal code is replete with regulatory statutes where the prohibited or unlawful act consists not in the doing of a particular thing but in the doing of that thing without a license by some designated authority. The practice of our various professions and also the sale of whisky in a wet area are examples of such statutes where the practice of the profession or the sale of the whisky is unlawful only without a license or permit. It is the absence of a license or permit that is the gist of the offense.
So it is apparent that Art. 489, P.C., did not make it unlawful to sell a pistol to a
Now what is the unlawful act created by Art. 489a, Vernon's P.C. 2 ? Therein it is made unlawful to knowingly sell a pistol to a minor at any time, at any place, or under any circumstances. The consent of the parent or guardian has nothing to do with it, nor can consent make the sale lawful.
Art. 489a, Vernon's P.C., is therefore a prohibitory statute which prohibits as unlawful the act of knowingly selling a pistol to a minor.
So Art. 489a, Vernon's P.C., of necessity repealed Art. 489, P.C., because the former makes unlawful the very act which Art. 489, P.C., authorized--that is, the sale of a pistol to a minor. Art 489a, Vernon's P.C., being the junior act in point of time of enactment, must therefore prevail.
Art. 489a, Vernon's P.C., appears as Sec. 4 of Chap. 267, Acts of the Regular Session of the 42nd Legislature, in 1931.
The purpose of the act was to levy an occupation tax upon certain persons engaging in the business of selling and otherwise disposing of pistols. The caption to the act expressly so states and, in addition thereto, there is set forth therein the following: '* * * prescribing conditions incident to the sale of pistols under named conditions * * *.'
Secs. 1, 2, and 3 of the act appear as Art. 7047d, Vernon's R.C.S.
Sec. 1 of the act levies an occupation tax of $10 per year upon every person, firm, or corporation engaging in the business of selling pistols at wholesale or retail.
Sec. 4 of the act (Art. 489a) makes it unlawful for one to violate any provision of the act and fixes the punishment to be applied.
So then, by that act, the legislature requires a license for one to engage in the business of selling a pistol for profit in this state and makes unlawful the sale of a pistol without a license.
At the time of the passage of Art. 489, P.C., in 1897, any person, dealer, or individual was authorized to sell a pistol to a minor. All the seller had to do in making such sale was to secure the written consent of the parent or guardian of the minor. With that consent or permission, the right to sell was complete, valid, and lawful.
Such being the status of the law, in order to make effective the licensing of sellers of pistols in this state the legislature was required to take...
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