Hewitt v. State

• Decision Date: 01 January 1860
• Citation: 25 Tex. 722
• Parties: JOHN W. HEWITT v. THE STATE.
• Court: Texas Supreme Court

25 Tex. 722

JOHN W. HEWITT

v.THE STATE.

Supreme Court of Texas.

1860.

The legislature cannot by law authorize the courts to dispense with the allegation in indictments for penal offenses of a material fact, which, under the law alleged to have been violated, forms the main ingredient, or is the gist of the offense.

Thus in articles 1757 and 1759, O. & W. Dig., the provision of the latter, warranting the conviction of a person indicted for a violation of the former (against selling spirituous liquors, etc., “ without first having obtained a license therefor), is unconstitutional in so far as it dispenses with the allegation that the selling complained of was without license. 25 Tex. S. 271.

The legislature cannot condemn a particular act as an indictable offense, and then empower the courts in the prosecution of a party for the commission of that act thus condemned, to substitute in the indictment and proof of it a different act, which is not the same, and is not itself prohibited by law.

The spirit of the bill of rights, which provides that “no citizen of this state shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land,” seems to require the foregoing principles of construction to be applied in establishing a correct rule as to what ought to be alleged and proven in penal causes.

APPEAL from Shelby. Tried below before the Hon. A. W. O. Hicks.

This case is sufficiently stated in the opinion.

Moore and Walker, for the appellant. Tested by the common law rules, the indictment is insufficient. See State v. Stuckey, 2 Blackf. 289;State v. Webster, 5 Halst. 293;Blasdell v. Hewitt, 3 Caines, 137; 2 U. S. Dig. tit. Indictment, secs. 109, 110, 112. The penal code and the rule of common law require such certainty as to show not only an offense, but with sufficient precision to enable the defendant to know of what he is accused, and that he may be able to plead a conviction in bar of a subsequent prosecution. Code Proc. art. 399, 394.

This indictment charges an act in itself perfectly innocent, or which may be so. Section 7 of the act of 1856, p. 68, attempts to dispense with allegations and proof of many things therein specified, as to kind of liquor, to whom sold, and fact of license or not. But this section, in aid of the prosecution, intends that the defendant shall be charged in the language of that section, “with a violation of the provisions of the act.”

The indictment charges only a sale and nothing inconsistent with a lawful one, and not a violation of any section of the act referred to.

But if the proper construction of the act be, that it means to dispense with the charge in the indictment, or proof on the trial, that the liquor was sold without license, such a principle would nullify the constitutional provision, “that no person shall be holden to answer for any criminal charge but on indictment or information.” An indictment as defined by the common law and code, is a written accusation of some act or omission declared to be an offense. Code Proc. 394. The principle asserted by this law carries also the right to substitute a fiction for substance, and thus under any proposed form of proceeding, to require the accused to defend against that of which he had never had notice by indictment, and to be convicted without a syllable of proof. People v. Toynbee; People v. Berberich, 2 Parker, Crim. Rep. 329.

On the subject of the repeal of the act in question by the code, we submit the question without comment, being fully aware that the question has been decided by the court. We respectfully refer to the very able opinion delivered by Mr. Justice Roberts dissenting in a case involving the question.

Attorney General, for the state. By the 7th section of the act of 7th February, 1856, “to authorize the county courts of this state to grant a license for the retail of spirituous liquors,” etc., it is made unnecessary to allege in the indictment that the selling “was without license.”

The act to be found in the amendments to the code, approved 12th February, 1858, in no way interferes with nor repeals said section. The act of 1858 is merely additional to the act of 1856. The one was not designed to repeal the other, excepting the sections indicated by the repealing clause of the latter act. The same section of the act of 1858 which dispenses with the necessity of averring that the selling was “without license,” dispenses with the necessity of proving it.

There is no written charge in the case, and it is deemed unnecessary therefore to discuss the questions which have been raised upon it. It is not perceived that there is any force in the objection which has been urged to the constitutionality of the law of 1856. There is no effort made in this case to require the accused “to answer for any criminal charge but on indictment.” The legislature has, by the act of 1858, simply in effect declared that when a person is charged in an indictment with retailing spirituous liquors in less quantities than one quart, that the charge means also that it was done “without license.” The accused understands this meaning and is fully apprised of what he is called upon to answer. This is the test of the sufficiency of the certainty in charging the offense. But the indictment charges that the selling was done contrary to the form of the statute in such case made and provided. This is equivalent in effect to a charge that the selling was done “without license.” Attaching the meaning designed by the legislature to the language used in the indictment, and it would be sufficient even under the common law. But I am very far from believing that all the efforts made by the legislature to relax the technical rules of criminal pleadings at the common law, are unconstitutional, or that they are in conflict with the 16th section of the bill of rights. The effect of the argument for the appellee is, that nothing can be an indictment within the meaning of the 16th section of the bill of rights, excepting such as would stand the common law test.

ROBERTS, J.

The indictment charges that the defendant, “on the first day of January, A. D. 1858, in the county...