Ex Parte Mitchum, (No. 6772.)

• Decision Date: 01 February 1922
• Docket Number: (No. 6772.)
• Citation: 237 S.W. 936
• Parties: Ex parte MITCHUM.
• Court: Texas Court of Criminal Appeals

237 S.W. 936

Ex parte MITCHUM.

(No. 6772.)

Court of Criminal Appeals of Texas.

February 1, 1922.

Original ex parte application for writ of habeas corpus by Doc Mitchum. Application denied.

R. E. Taylor, of Fort Worth, and Benson & Benson, of Bowie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

This is an original application for writ of habeas corpus.

The indictment of the appellant, filed December 7, 1921, contains the following averment:

"* * * That Dock Mitchum, on or about the 1st day of September, A. D. one thousand nine hundred and twenty-one, and anterior to the presentment of this indictment, in the county of Wise, and state of Texas, did then and there unlawfully have in his possession for the purpose of sale intoxicating liquor, said intoxicating liquor not then and there being in possession of said Dock Mitchum for scientific, medicinal, mechanical, or sacramental purposes."

Prior to the 15th day of November, 1921, the possession of intoxicating liquor was prohibited except "for medicinal, mechanical, scientific, or sacramental purposes." See Acts of 36th Leg. 2d Called Sess. c. 78, § 1. On the date mentioned there became effective an amendment to the statute by which said section 1 was rewritten so that it read thus:

"That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, take orders for, solicit, or furnish spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicant whatever, or any equipment for making any such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited." Acts 37th Leg. 1st and 2d Called Sessions, c. 61, § 1.

In another section of this act, the legality of the possession of such liquors for sale for medicinal, mechanical, scientific, or sacramental purposes was recognized.

Appellant asserts that the amendment operated to repeal section 1 of chapter 78, supra, and that in consequence of such repeal he is entitled to release for the reason that on September 1st, the date that the offense was alleged to have been committed, the offense was not denounced by the law of the state. If appellant's claim touching the repeal of said section 1 of chapter 78 was true, then the result stated would not necessarily follow, for the reason that section 1 of chapter 61, supra, was in effect for some 20 days before the indictment was filed, and an offense under that section is manifestly charged. Generally speaking, the averment of the date of the offense in an indictment is not a matter of substance. Sanders v. State, 26 Tex. 119, and other cases listed in Branch's Ann. Texas Penal Code, § 439.

The indictment having been presented in a court of competent jurisdiction by a grand jury regularly organized, and there being a law under which the prosecution may be maintained, an irregular or insufficient averment of the facts does not entitle the accused to release under a writ of habeas corpus. His remedy for such defect is to invoke the ruling of the trial court and present to this court on appeal if the ruling is against him. Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637, and cases therein cited.

In our judgment, however, the effect of rewriting section 1 as it is enacted in chapter 61, supra, was not to repeal the law denouncing as an offense the possession of intoxicating liquor, but had the effect to change the definition of that offense so that, instead of denouncing as unlawful all possession of intoxicating liquor save that which was for mechanical, medicinal, scientific, or sacramental purposes, it denounced as an offense the possession only of intoxicating liquor which was possessed "for sale," and not for "medicinal, mechanical, scientific, or sacramental purposes." This construction, we understand, is supported by authority. Cox v. State, 234 S. W. 531; Ruling Case Law, vol. 25, p. 173; Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121, and other cases cited in Michie's Encyclopedic Digest of Texas Crim. Rep. vol. 6, p. 172; Ruling Case...