Edmanson v. State

• Citation: 142 S.W. 887
• Parties: EDMANSON v. STATE.
• Decision Date: 11 October 1911
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

142 S.W. 887

EDMANSON v. STATE.

Court of Criminal Appeals of Texas.

October 11, 1911.

On Motion for Rehearing, January 3, 1912.

Appeal from Lampasas County Court; M. M. White, Judge.

Slim Edmanson was convicted of pursuing the occupation of taking orders for intoxicating liquors, and appeals. Reversed and remanded.

A. L. Curtis and R. L. H. Williams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was charged by information and complaint with the offense of pursuing the occupation of taking orders for intoxicating liquors in Lampasas county, Tex., when prohibition was in force in said county. He was tried and convicted, and his punishment assessed at a fine of $6,000, and imprisonment in the county jail for 90 days.

There were some 20 witnesses introduced by the state who testified that they went to a cold drink stand run by appellant in Lampasas, and gave him orders for intoxicating liquors; that he would telephone the orders to a liquor dealer at Belton, Tex., and in the majority of instances the whisky would come on the next train. In some instances the whisky would be shipped in the name of the parties ordering it, and they would get if from the depot. Others say appellant would deliver it to them at his place of business. R. L. Furness testified he was in the saloon business at Belton, and a member of the firm of Warren & Furness; that appellant commenced to order whisky from that firm in September and continued until January; that in September, October, and November his orders averaged about $10 per day, may have been more or less. In the month of December he ordered between $400 and $500 worth of whisky. Appellant collected the money from all those from whom he took orders and settled with the liquor dealers.

Under these facts, we think it was amply shown that appellant was pursuing the occupation of taking orders for intoxicating liquors; and, the evidence showing that prohibition was in force in Lampasas county, the judgment must be affirmed, unless the information is invalid under some of the grounds stated in the motion to quash the information and complaint. Before discussing this, we will dispose of the other questions relied on in the motion for a new trial.

In bill of exception No. 2 appellant states no reason why the orders of the commissioners' court putting prohibition in force in Lampasas county were not admissible in evidence; and bill No. 3 states no reason why the order levying a county occupation tax was not admissible, merely stating all these orders were admitted over appellant's objections, to "which action and ruling of the court the defendant then and there excepted." All of the bills of exception are in this condition, and, under an unbroken line of authorities, this court has held that we could not consider bills of exception, unless the grounds of the objection or exception are specifically stated.

Neither can we consider the ground in the motion complaining of the testimony of the witness Smallwood. The record contains no bill, and there is nothing to show that objection was made, except what is stated in the motion for a new trial. This has always been held insufficient; the fact that objection was made not being verified by the judge's signature.

This brings us to the motion to quash the information on the various grounds stated in the motion. There is a bill of exception in the record to the action of the court in overruling this motion, and it is brought forward, also, in the motion for a new trial. The motion raises the questions of the constitutionality of the law under which appellant was prosecuted, and the validity of the information. The motion reads as follows:

"Now comes the defendant in the above styled and numbered cause, and moves the court to quash and hold for naught the complaint and information in this case filed, for the following reasons, viz.:

"(1) Because the said complaint and information does not charge any violation of the laws of the state of Texas.

"(2) Because said complaint and information does not sufficiently charge that the local option law was in full force and effect in Lampasas county, Tex., at the time of the alleged commission of the offense charged in said complaint and information.

"(3) That said complaint does not charge that local option was, and is, in full force and effect, but only states that affiant has good reasons to believe, and does believe, that there was a local option election held in Lampasas county, Tex., and that at said election the majority of the votes cast was for local option, and that afterwards the result of same was published, etc., and does not aver in positive terms that local option was in full force and effect at the time of the alleged commission of the said offense charged in said complaint and information.

"(4) Said complaint charges: That one Edmanson, commonly known as Slim Edmanson, did commit the offense charged in said complaint and information; there being no allegation as to defendant's true name or initials, not being known to the affiant, or to the pleader, or that any diligence had been exercised by either the affiant or the county attorney to ascertain the name of said defendant. That the defendant at the time of the alleged commission of said offense lived in the town of Lampasas in Lampasas county, Tex., a distance of not more than 200 or 300 yards from the courthouse in said town of Lampasas, and that upon the least exercise of diligence his first name could have been ascertained, either by affiant or by the county attorney who drew the complaint and information.

"(5) That said law under which said complaint and information was drawn is unconstitutional, in that said law does not comply with the Constitution of this state, which requires the tax levied to be uniform, and provides that said tax be not excessive.

"(6) That said law under which defendant stands charged is not in keeping with the Constitution of this state, in that said law is discriminative and is legislation against a particular trade or calling, and is in restraint of trade.

"(7) That said law is violative of the Constitution of this state, in that it is in substance class legislation.

"(8) That said law is unconstitutional, in that the penalty affixed is excessive in the extreme.

"(9) That said law under which the defendant stands charged is not in keeping with that clause of the Constitution which requires that all taxes be uniform.

"(10) That the said law under which defendant stands charged is of no force and effect, and the same is unconstitutional, in that said law undertakes to license a business and occupation which is expressly prohibited by the statute law of this State."

The first three grounds are untenable. If chapter 20 of the Acts of the 31st Legislature is valid, the complaint and information charge an offense, and under articles 257 and 466 of the Code of Criminal Procedure of 1895, prescribing the requisites of a complaint and information, the charge is specific enough.

The fourth objection, that the information and complaint charge that "one Edmanson, commonly known as Slim Edmanson, did," etc., is insufficient, in that it is not charged that appellant's true name was unknown. This question is not entirely free from difficulty, but as in the body of the complaint and information he is named as Slim Edmanson, and the witnesses who knew him all speak of him as being named Slim Edmanson, one witness, J. R. Throckmorton, testifying he had known defendant Slim Edmanson all his life, we have concluded the court did not err in overruling the motion on this ground. There is no suggestion in the record, or in the evidence, that he has any other or different name than that of Slim Edmanson.

The last six grounds complain of the unconstitutionality of the law, in that it is discriminative; that it is class legislation; that the penalty affixed is excessive; that it is violative of that clause of the Constitution which provides that taxation shall be uniform; and that it undertakes to license a business or occupation which is prohibited by law. The constitutionality of the laws passed by the Legislature in aid of the enforcement of prohibition wherever adopted has been discussed in a number of opinions by the courts of this state, and expressly so in this court. In the case of Brown v. State, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743, it is held: "Whatever may be said as to the power of the Legislatures of other states, with no express provisions of their Constitutions on this subject, to legislate in regard to the liquor traffic under the general police power, the same does not apply with us. We have an express provision on the subject, and that provision was intended to prescribe a method of dealing with the question, and to exclude any other rule or method, at least so far as local option territory is concerned." This rule is approved in Stephens v. State, 73 S. W. 1056, in which it is held that the law prohibiting a physician from giving a prescription without an examination of the patient and certifying to his condition is unconstitutional; the court saying, "The Legislature has not been authorized by our Constitution to prohibit the giving of prescriptions" — again holding that the Legislature is powerless to do more than prohibit the sale, and that all remedial laws in aid of the enforcement of the prohibition law are unconstitutional and void. In Ex parte Massey, 92 S. W. 1087, the Brown Case, supra, is again approved; this court saying: "This section (article 16, § 20) alone furnishes the authority for local option legislation, and limits the authority of legislation to the prohibition of sale within the prescribed limits where the law is operative."

If these three decisions announce correctly the law, it necessarily follows that appellant's contention is correct, and the law in question is unconstitutional. But this is...