Floeck v. State

• Decision Date: 10 April 1895
• Citation: 30 S.W. 794
• Parties: FLOECK v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W. 794

FLOECK v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1895.

Appeal from district court, Harris county; E. D. Cavin, Judge.

Charles Floeck was convicted of selling liquor without a license, and appeals. Affirmed.

Perryman & Bullitt, Oliver & Oliver, and Chas. E. Ashe, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant was convicted under an indictment charging him with pursuing the occupation of selling spirituous, vinous, and malt liquors, and medicated bitters, in quantities of one gallon and less than one gallon, without first obtaining a license therefor. The jury convicted him, and assessed his punishment at confinement in the county jail for a period of 10 days.

The only question required by us to be considered is the constitutionality of the act of May 6, 1893, regulating the sale of spirituous, vinous, and malt liquors, and medicated bitters. Section 7 of said act reads as follows: "That the payment of the United States special tax as a seller of spirituous, vinous or malt liquors shall be held to be prima facie evidence that the person or persons paying such tax are engaged in selling such liquors." The appellant contends that this section of the act is unconstitutional because, he says, the legislation, in making the obtention of a license from the federal government to follow the occupation of a liquor dealer prima facie evidence that he pursued such occupation, is an invasion of article 1, § 15, of our constitution, which declares that the right of trial by jury shall forever remain inviolate. Appellant also contends that section 7 is in violation of article 3, § 35, of the constitution, because said section is subject-matter not embraced in the caption of said act.

In order to present appellant's first proposition clearly, we deem it necessary to state the status of the case, as shown by the record. On the trial of the case the only evidence adduced was as follows: The state proved that defendant, Charles Floeck, made application for and paid the United States special tax, as a seller of spirituous, vinous, and malt liquors, and obtained a receipt and license therefor, in quantities of one gallon and less than one gallon; such payment of license covering the period of one year, from the 30th day of June, 1893, to and including the 30th day of June, 1894, authorizing him to engage in the sale of spirituous, vinous, and malt liquors during said period in Harris county. The county commissioners' court of Harris county, Tex., duly levied a tax on the occupation of selling spirituous, vinous, and malt liquors, equal to one-half of the amount of the state tax for pursuing said occupation, which said levy covered and included the months from June 30, 1893, to June 30, 1894. The defendant had paid the tax due to the state of Texas, and county of Harris, and had obtained from said state and county a tax receipt and license by law for pursuing the occupation of selling malt liquors only, which said payment of license authorized and entitled said defendant to pursue the occupation of selling malt liquors only for a period from June 30, 1893, to and including June 30, 1894, and that said Floeck did pursue and follow the occupation of selling malt liquors in Harris county for the time mentioned in the indictment. On this state of the case, the court charged the jury as follows: "If you believe from the evidence, beyond a reasonable doubt, that in Harris county, Texas, or on about the 1st day of October, 1893, the defendant did engage in the sale of, and did follow and pursue the occupation of selling, spirituous, vinous, and malt liquors, in quantities of one gallon and less than one gallon, without having first paid the tax, due to the state of Texas and to the county of Harris therefor, and without having first obtained a license therefor, then find the defendant guilty as charged in the indictment, and assess his punishment by fine in any sum not less than four hundred and fifty dollars, nor more than nine hundred dollars, or by imprisonment in the county jail, for not less than ten days, or more than ninety days, in your discretion. By the law of this state, the payment of the United States special tax as a seller of spirituous, vinous, and malt liquors shall be held to be prima facie evidence that the person paying such tax is engaged in selling such liquors. By `prima facie evidence' is meant, not that the evidence is conclusive, but that it may be rebutted or overcome by the contrary. The defendant is presumed to be innocent until his guilt is established by the evidence to your satisfaction, beyond a reasonable doubt, and, unless the evidence in this case so satisfies you, then find him not guilty. You are the exclusive judges of the credibility of the witnesses and the weight of the evidence, and by your conclusions thereon you will determine your verdict." The defendant duly excepted to such charge, as upon the weight of the evidence, and invading the functions of the jury. Appellant insists that the effect of section 7 of the act in question is to take away from the jury the right to pass upon the facts of the case. If the statute made the evidence of having paid the federal tax conclusive evidence that defendant was engaged in the sale of intoxicating liquors, his position would unquestionably be sound. But the statute does not do this. It merely makes the payment of the tax prima facie evidence that the person so paying the tax was engaged in the traffic. In support of his contention, appellant cites two authorities, to wit, State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, and Com. v. Uhrig, 146 Mass. 132, 15 N. E. 156. The Maine statute on the subject, making the federal license prima facie evidence, is similar to our own. The first case cited was decided upon the judge's charge. He instructed the jury that testimony had been offered tending to show that defendant had paid said tax, and charged them, if they found he had done so, as a matter of law he was a common seller of intoxicating liquors, and they would so find. In reviewing the question the supreme court say "that this charge instructed the jury that the proof of payment of the tax made it their duty to find defendant guilty, whether they believed him guilty or not, and that it was beyond the province of the court to so instruct the jury in any case. That the trial by jury was guarantied by the constitution, and it is not within the province of the legislature to enact a law which will destroy or materially impair the right." But in that case the court further say: "We do not think it is necessary to so construe the act in question. Among similar statutes, in some of which the words used are `prima facie evidence,' and in others the words are `presumptive evidence,' we cannot doubt that these phrases are intended to convey the same idea. Thus, the possession of a dead bird at certain seasons of the year, and the possession of a mutilated, uncooked lobster, are declared to be prima facie evidence that the former was unlawfully killed, and that the latter was less than ten and one-half inches long when taken, while the possession of a salmon less than nine inches in length, or a trout less than five inches in length, is declared to be presumptive evidence that they were unlawfully taken. Similar provisions exist with respect to the possession of the carcasses of moose and deer at those seasons of the year when it is considered unlawful to hunt or kill them. Can it be doubted that these provisions all mean the same thing? We think not, and we are not aware that either of them has ever been considered as making it obligatory on the jury to find a defendant guilty, whether they believed him to be or not. They mean that such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in fact satisfy them of his guilt beyond a reasonable doubt, and not otherwise." In the Massachusetts case, above referred to, the question arose upon a statute similar to our own. The question there was upon the admissibility of evidence. A witness was asked the following question: "Q. During the time covered by the complaint, did you see posted in the defendant's premises a United States tax receipt as a dealer in spirituous or intoxicating liquors, other than malt liquors?" The defendant objected to the testimony. The judge overruled the objection, and the witness answered the question in the affirmative. The court says: "So far as that statute authorized the introduction of such evidence, it is merely declaratory of the common law, and is valid." In the case at bar the only ruling was that the evidence was admissible. No ruling was asked or...