Gordon v. State, 28219

• Decision Date: 23 May 1956
• Docket Number: No. 28219,28219
• Citation: 310 S.W.2d 328,166 Tex.Crim. 24
• Parties: I. N. GORDON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 328

310 S.W.2d 328

166 Tex.Crim. 24

I. N. GORDON, Appellant, v. The STATE of Texas, Appellee.

No. 28219.

Court of Criminal Appeals of Texas.

May 23, 1956.

B. R. Stewart, Edinburg, for appellant.

James S. Bates, Crim. Dist. Atty., Edinburg, and Leon B. Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

An illicit beverage, within the meaning of the Texas Liquor Control Act, is any alcoholic beverage on which a tax imposed by the laws of this state has not been paid and a tax stamp affixed thereto, Art. 666-3a, Sec. (4), Vernon's Ann.P.C.

It is unlawful to possess an illicit beverage in this state, Art. 666-17, Sec. (13), Vernon's Ann.P.C.

The information alleged a violation of those statutes--that is, that appellant possessed an illicit alcoholic beverage, to-wit, rum.

The undisputed evidence shows that appellant, accompanied by two other persons, entered the United States from the Republic of Mexico at the port of entry at Hidalgo, Texas. At that time, he had in his possession eleven bottles each containing one-fifth gallon of rum, which he had purchased in the Republic of Mexico.

The tax due the State of Texas had not been paid thereon and no tax stamp evidencing such payment was attached to the bottles.

After appellant had passed the United States Customs' inspection and had entered the State of Texas, an agent of the Texas Liquor Control Board requested payment by appellant of the tax due on the rum and that a stamp evidencing such payment be affixed to the bottles.

Appellant refused to pay the tax, and his arrest followed.

Upon the trial of the case appellant testified that he had purchased the rum in the Republic of Mexico and, when apprehended, was on his way and transporting the rum to his home in North Carolina, and that he had no other intent in the possession or transportation of the rum. That testimony was not controverted.

Appellant's conviction followed, with punishment assessed at a fine of $100.

It is appellant's contention that there was no tax due the State of Texas upon the rum, and that any statute of this state levying a tax thereon was void. This contention is based upon two propositions of law: (a) that Art. 1, Sec. 10, Clause 2, of the Constitution of the United States, the export-import clause, prohibits the State of Texas from levying a tax on the rum; and (b) that the rum was then moving in interstate commerce through the State of Texas when it was seized, and therefore could not be subject to taxation by the State of Texas, under Art. 1, Sec. 8, Clause 3, the commerce clause, of the Constitution of the United States.

It becomes material to notice the tax imposed by this state, and here challenged.

By statute, rum is a distilled spirit, Art. 666-3a, Sec. (3), Vernon's Ann.P.C.

A tax is levied and imposed on the 'first sale' of distilled spirits in this state, Art. 666-21, Vernon's Ann.P.C.

The term 'first sale,' as above used, means, among other things, the first possession of any liquor imported into this state.

For tax purposes, distilled spirits imported from any foreign country are subject to taxation and must have affixed thereto the appropriate Texas tax stamp, Art. 666-17, Sec. (32), Vernon's Ann.P.C.

So then, there is no question but that the State of Texas has levied a tax upon the rum involved and shown by the facts of this case. If that tax is valid, this conviction should be affirmed; if not, then a reversal of the conviction should follow.

The tax imposed is not a property tax. Nor is it a tax upon the privilege of importing or bringing the liquor into this state. The tax is a use or privilege tax, levied for the...