Dozier v. State

• Decision Date: 03 May 1911
• Citation: 137 S.W. 679
• Parties: DOZIER v. STATE.
• Court: Texas Court of Criminal Appeals

137 S.W. 679

DOZIER v. STATE.

Court of Criminal Appeals of Texas.

May 3, 1911.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

George Dozier was convicted of pursuing the occupation of selling intoxicants in a local option county, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was indicted for pursuing the occupation of selling intoxicating liquors in Red River county, a county where local option had been adopted. Upon a trial he was adjudged guilty, and his punishment assessed at five years confinement in the penitentiary.

The evidence in this case, from the state's view, shows that defendant on several occasions was going about over the county with whisky in a sack, in pint bottles, selling it at 80 cents a pint. He is shown to have made sales to about 10 different persons. One witness testified that defendant agreed to bring them whisky every second Saturday, if they would buy as much as a case. He was to deliver it in the woods between the Igo place and Dan Duty's place. Some of the witnesses testify to buying whisky from defendant on different occasions at different places. If the jury believed these witnesses, this would make him guilty of pursuing the occupation or business of selling intoxicating liquors.

There are no bills of exception in the record. The attorney who appeared before this court in behalf of defendant stated that the attorney who represented defendant in the trial court died before completing the record. This is unfortunate; but we cannot consider a number of the assignments, in the absence of bills of exception approved by the trial judge.

There is an application for a continuance in the record; but, as before stated, there is no bill of exception in the record to the action of the court in overruling it. There is no process attached to the application showing what, if any, diligence was used to obtain the witnesses. The indictment was returned into court on June 10th, and the defendant was not tried until the 27th. It is stated that one of the witnesses would testify that defendant was a farmer. This would only be cumulative of other testimony in the record. In addition, this would not prevent him being also a peddler of whisky on Saturdays and Sundays, as testified to by witnesses. The facts he states he expects to prove by the other witness would only tend to impeach one of the state's witnesses, and leave the evidence of the other nine or ten who testified they bought whisky from him unimpaired. There was no error in the court overruling the motion, viewed in the light of the record. The indictment is drawn in accordance with the decision of this court in Mizell v. State, 128 S. W. 125, and held valid in several cases since then. See, also, the case of Slack v. State, 136 S. W. 1073, and other cases decided at this term of the court.

The contention is also made that, local option having been adopted prior to the enactment of this law by the Legislature, it is not in force in Red River county. In Slack v. State, 136 S. W. 1073, decided at this term of the court, we approved the holding in the case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and held that the law making it an offense to pursue the occupation or business of selling intoxicating liquors is in effect in all parts of the state where prohibition has been adopted. The attorney in this case insists that there is an irreconcilable conflict in the Lewis Case, 58 Tex. Cr. R. 351, 127 S. W. 808, and in the Fitch Case, and one or the other should be overruled. As said by us in the Slack Case, we did not think it necessary to discuss the Lewis Case, only to say that the doctrine in that case would be limited to a single sale. In so far as it is sought to make it a precedent preventing the Legislature from adopting other remedial measures to cure evils as they arise, we would not follow it. Whenever it is manifest, as shown in the Slack Case, that the Legislature intended to make the law applicable to all territory where prohibition was in force, there being no inhibition in the Constitution, we will give force and effect to that intent. According to our view, the Constitution says that the Legislature shall pass a law that the people may from time to time pass on the question of whether or not the sale of intoxicating liquors shall be prohibited, and, when they declare that it shall be prohibited, it is the duty of the Legislature to pass laws to make their will effective. If there were people who were trying by illegal means to prevent the sale, after the people of a given territory had voted that it should be sold, we would deem it the duty of the Legislature to pass laws to protect those lawfully engaged in the business.

The contention is made that the people might not have voted in favor of the law, if they had known the Legislature would pass laws to enforce it. We have not that opinion of our citizenship. As far as our observation goes, all good citizens want to see the law enforced while it is the law. They may disagree as to the wisdom of adopting the law, but all desire it respected and obeyed as long as it is the law, except the criminal who violates it. There is a mode by which all laws can be repealed, if not desired by the people affected thereby; but we cannot agree that the Legislature is powerless to remedy evils as they arise.

There is but one restraining power—the Constitution—and, so long as it does not inhibit the Legislature from so doing, we do not think a construction of the court should do so. Judge Davidson, in his dissenting opinion in the Fitch Case, supra, holds there is no constitutional question involved. The only constitutional provision in regard to this matter is section 20 of article 16: "The Legislature shall at its first session enact a law whereby the qualified voters of any county, justice precinct, city (or subdivision of a county as may be designated by the commissioners' court) may by a majority vote determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."

In obedience to that command, the Legislature has, in chapter 69 of the Revised Civil Statutes, passed a law whereby the people of the named territory may pass on this question. The Legislature has not undertaken to put the law in force in any territory, but has only passed a law whereby the qualified voters may determine this question, and may have an election every two years. This is a part of the Civil Code of this state, and has nothing to do with the enforcement of the law after it has been adopted. It is within the contemplation of this section of the Constitution, that, if the people of any given territory, by a majority vote, determine that the sale of intoxicating liquors shall be prohibited in that territory, the Legislature will pass laws to see that the will of the people thus expressed is enforced. But the Penal Code forms no part of the law (Civil Statutes) whereby the people determine whether or not the sale shall be prohibited, and, if the Legislature pass laws for the enforcement of the law where it has been adopted by the vote of the people, it puts the law in force in no territory where they had not voted for it, but only enforces it in that territory where local option has been adopted in the way provided by the Constitution.

The contention made by some that for the Legislature to pass laws for the enforcement of the law in that territory where the people have, by a majority vote, already adopted it, is the Legislature adopting the law, is too absurd to be considered. The Legislature has not by any law passed, or sought to enact, put the prohibition law in force in any territory in this state, either under the law making it a felony to pursue the occupation of selling liquor where the local option has been enacted, or may thereafter be enacted, or by any other law, but by the passage of suitable laws it has sought to enforce this provision of the Constitution where the people, in the exercise of the right guaranteed to them by the Constitution of this state, adopted the local option law and prohibited the sale of intoxicating liquors. The Constitution of this state not only does not inhibit the Legislature from the passage of such laws, but it is virtually commanded that they do so. To say that the Legislature should pass a law whereby the people might determine whether the sale should be prohibited, and if they, by a majority vote, determine that the sale should be prohibited, then for the Legislature to sit with "folded hands" and say, "We have complied with the Constitution in giving the people a right to determine this question, and it is not our duty to pass any law whereby their will can be enforced," would be an absurdity that no thinking man will sanction, as we see it. First, the people of any territory must determine the question of whether they desire its sale prohibited, and with this the Legislature has no concern, except to pass laws whereby their will may be finally determined. If, in the exercise of their wisdom, the people of a named territory see proper to put the local option law in force, and thus prohibit the sale of intoxicants, then it becomes the duty of the Legislature, the Governor, the courts, and all their officers to see that their will is respected and enforced; and the Constitution does not inhibit it, but commands that they do so, and the Legislature should pass all laws necessary to the attainment of this end, the courts uphold the laws so passed if not in violation of the Constitution, and the officers of the law to enforce them. See Slack v. State, 136 S. W. 1073, decided at this term of court; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, for further discussion of this question.

The appellant complains of the charge of the court, in that it gave the jury no rule by which to determine whether or not local...