Longmire v. State

• Decision Date: 16 December 1914
• Docket Number: (No. 3353.)
• Citation: 171 S.W. 1165
• Parties: LONGMIRE v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 1165

LONGMIRE v. STATE.

(No. 3353.)

Court of Criminal Appeals of Texas.

December 16, 1914.

Supplemental Opinion January 2, 1915.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Charley Longmire was convicted of violating the prohibitory law, and he appeals. Reversed and remanded.

Eidson & Eidson, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under an indictment charging that:

"On or about the 13th day of August, 1914, he (a private person) did then and there unlawfully transport, carry, and deliver intoxicating liquor to one Roy Blansit in Hamilton county, Tex."

Other necessary allegations are made showing that local option was in force in Hamilton county, etc., but, as the whole case hangs around the above allegation, we only copy that much of it in substance. When tried, he was convicted, and his punishment assessed at one year's confinement in the state penitentiary.

The evidence in behalf of the state would show that appellant stated he was going to Waco. Roy Blansit delivered to him $1, with an understanding that appellant would bring him (Blansit) a quart of whisky; that appellant did bring the whisky, and placed it where Blansit could and did get it. They were working together at the time, but were not members of the same family.

Appellant's contention is that he having business in Waco, desiring to go there to see his uncle, he remarked that if he had money enough he would go, when Blansit let him have a dollar; that at the time he received the dollar he told Blansit he could not bring him any whisky, and that he did not bring Blansit any whisky; that he bought some whisky for himself, and brought it back home with him, and if Blansit got a quart of it he did not know it. This defense was submitted by the court to the jury; he giving, at appellant's request, the following charge:

"If you believe from the evidence that defendant purchased liquor in Waco for his personal use, and personally carried said liquor to Hamilton county, but that, after he reached Hamilton county with it, the prosecuting witness, Roy Blansit, without the knowledge of the defendant, got a part of said whisky, or in case you have a reasonable doubt hereof, you will acquit the defendant."

Having given this special charge, there was no error in refusing to give the other special charge relating to the same matter.

There was no error in refusing to give the special charge in regard to whether or not local option was in force in Hamilton county. Our law now provides for a contest to be instituted in a given period of time, and, if no contest is instituted within this time, the question as to the validity of the law cannot be later raised on the trial of a case where one is charged with a violation of the law. In the case of Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 816, this court held:

"Whatever we might conclude in respect to these several matters, in the absence of the statute passed by the Thirtieth Legislature (Acts 30th Leg. c. 8), requiring contests to be made of local option elections theretofore or to be thereafter held, it is sufficient to say that, in the absence of a contest, we must and shall assume that the judgment and decree putting local option in force and the proclamation of the county judge had the effect to institute the law in that county, and that this presumption and conclusion are conclusive on us and on appellant."

See, also, Alexander v. State, 53 Tex. Cr. R. 505, 111 S. W. 145; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Jerue v. State, 57 Tex. Cr. R. 215, 123 S. W. 414. The record shows that the order of the county judge prohibiting the sale of intoxicating liquors in Hamilton county was published in the Rustler, a weekly newspaper, November 30 and December 7, 14, and 21, 1911, and prohibition was and is in force in said county, and, no contest having been instituted, we conclusively presume that all steps taken were legal.

Appellant moved to quash the indictment on various grounds, none of which, we think, are tenable. He contends that, as the local option law was adopted in Hamilton county prior to the enactment of the Allison law by the Legislature, its provisions do not apply to Hamilton county. This was decided adversely to him in the case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040.

Appellant also contends that the indictment should have alleged whether the transportation was an interstate or intrastate transaction. This court held in the Peede Case, 170 S. W. 749, that sections 2, 3, and 4 related to intrastate transactions and section 5 to interstate. As the indictment in this case is drawn under the sections relating to intrastate transactions, the allegations in the indictment are sufficient to charge an offense under these sections of the bill. The act itself specifically provides in section 12 that:

"It shall not be necessary * * * to negative the exceptions herein made, but the same shall be available * * * as purely defensive matters."

Many other objections are urged to the indictment, all of which go to the constitutionality of the act. In the brief herein filed, and in the able oral argument presenting this case, the validity of the law is assailed from almost every conceivable viewpoint. This is an intrastate transportation of whisky and it is urged that, as we held in the Peede Case that it was not a violation of law to ship, transport, and deliver whisky to one in prohibition territory for personal use from a point without the state, to hold that the law prohibits the transportation and delivery of whisky from a point within the state for such use would render the law void, for by such construction it would contravene section 1 of article 14 of the amendments to the federal Constitution, which guarantees to each individual the equal protection of the law. In the Peede Case we were passing on that provision of the law (section 5) which by its terms dealt with interstate shipments, etc., and it by its language provided that such shipments were prohibited only when "intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this state." This being an intrastate transportion, a transportation from Waco, where the sale is licensed, to Hamilton county, where the sale is prohibited, a different question is presented. In dealing with intrastate shipments, the Legislature has provided:

"Sec. 2. Except as otherwise provided in this act it shall be unlawful for any person, firm or corporation, or any officer, agent or employé thereof in this state to deliver to any other person, firm or corporation, or any agent, officer or employé thereof, any intoxicating liquor for shipment, transportation, carriage or delivery within this state.

"Sec. 3. Except as otherwise provided in this act, it shall be unlawful for any person, firm or corporation, or any agent, officer or employé thereof in this state to receive from any other person, firm, or corporation, or any agent, officer or employé thereof, any intoxicating liquor for shipment, transportation, carriage or delivery within this state.

"Sec. 4. Except as otherwise provided in this act, it shall be unlawful for any person, firm or corporation, or any agent, officer or employé thereof to ship, transport, carry or deliver any intoxicating liquor to any other person, firm or corporation, or any agent, officer or employé thereof in this state."

"Sec. 9. Nothing in this act shall make it unlawful for any person for the use of himself or the members of his family residing with him, to personally carry such liquor to any point within this state."

In dealing with commerce between the states we must remember this is under the control of Congress by virtue of the interstate commerce clause of the federal Constitution, and our state can go and only has gone as far as Congress has seen proper to authorize. But just as commerce between the states is under the dominion and control of the federal government, commerce wholly within the state is under the control of the state government; and if a state in legislating, recognizing this to be true, should, as many states have done, prohibit the traffic in intoxicating liquors within the state, yet a citizen might and often has sent to another state and purchased such liquors, such legislation is not violative of any provision of the federal Constitution, and does not deprive any citizen of the equal protection of the law, for all citizens of the state have the same right and privilege to send and get it without the state, although not to buy it within the state.

We have quoted above the provisions of the law, so that it may be seen that, in dealing with the shipment and transportation of liquors wholly within the state, the Legislature did not use the qualifying words "is intended to be received, possessed, sold or in any manner used in violation of the law," in sections 2, 3, and 4, as they did in the section (5) dealing with interstate shipments, etc. In this case we have wholly a different question presented, for now we are dealing with transportation and shipment wholly within the state—a question which our state legislative body alone has authority to deal — and, in so far as it may be necessary to protect the public health, public morals, and public welfare, their will as expressed into law is final and supreme.

We are aware that in the case of Holley v. State, 14 Tex. App. 505, Judge White held that section 20 of article 16, in authorizing the sale of whisky to be prohibited, was an implied limitation on the power and authority of the Legislature, and the Legislature of this state could do no more than to say, "Thou shalt not sell," and affix a penalty for making an illegal sale. Judge Willson, however, at that time dissented from the view that this provision of the Constitution was a limitation on the authority...