McClane v. State

• Decision Date: 15 June 1960
• Docket Number: No. 31966,31966
• Citation: 343 S.W.2d 447,170 Tex.Crim. 603
• Parties: James Everett McCLANE, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 447

343 S.W.2d 447

170 Tex.Crim. 603

James Everett McCLANE, Appellant, v. STATE of Texas, Appellee.

No. 31966.

Court of Criminal Appeals of Texas.

June 15, 1960.

Mullinax, Wells, Morris & Mauzy, by Oscar H. Mauzy, Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., Robert E. Lyle, Dan W. Stansbury, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Upon a plea of nolo contendere, appellant was convicted of the offense of unlawfully possessing a bomb and his punishment assessed by the jury at confinement in the penitentiary for 5 years.

The indictment drawn under Art. 1723, Vernon's Ann.P.C. alleged that appellant did 'unlawfully possess and have in his control a bomb, to-wit, a combustible substance, to-wit, gasoline contained and controlled within a container, then and there provided with a wick, which said bomb was then and there capable by its ignition and explosion of causing damage to persons and property, * * *.'

Art. 1723, Vernon's Ann.P.C., Secs. 1, (a), 2 and 9 read as follows:

'Section 1. The term 'bomb,' as used in this Act means: (a) Any explosive, inflammable or combustible substance controlled in any form of container whatsoever whereby the same is susceptible of being set off or exploded, or which automatically explodes when coming in contact with heat, fire, mechanical contrivance or chemical process or which will ignite, detonate or dissemble in any manner so as to cause injury or harm to any person, animal or plant life, or which will damage property in any manner.'

'Section 2. Whoever shall manufacture, own, store, keep, sell, transport, possess or have in his control a bomb, as defined in Section 1, shall be guilty of a felony and upon conviction shall be confined in the State Penitentiary for not less than five (5) years and not more than twenty-five (25) years and fined not less than One Thousand Dollars ($1,000) and not more than Ten Thousand Dollars ($10,000), either or both. If mayhem or death shall result from such act, then the death penalty may be assessed.'

'Section 9. The provisions of this Act shall not apply to duly constituted police or law enforcement officers, or to members of the military, naval or air force establishments when acting within their official capacities, or to licensed and recognized manufacturers, storers or dealers in pest destroyers chemical substances or laboratory supplies of any kind, or to licensed physicians, surgeons, chemists, pharmacists, nurses or hospital employees in their usual employment. Nor shall it apply to railroads, commercial truckers or recognized operators or licensed dealers who transport or use dynamite or other explosives in legitimate mining, oil developing, manufacturing or displaying of fireworks, or to torpedoes, fusees and other inflammable or explosive substances used by railroads as warning or signal devices, or to persons manufacturing, storing, transporting or selling ammunition where the said persons are engaged regularly in the legitimate business of dealing in such substances. Nor shall it apply to any substances or containers used or intended to be used for industrial, mechanical, laboratory or medical purposes, or for use in the arts and sciences, or for use as economic poisons, antifreeze preparations, or fuels. This Act shall exempt the following items: small arms propellent powder, and small arms primers, and percussion caps, and old fashioned black powder.'

Appellant filed various motions to quash the indictment on the ground that the allegations contained therein were insufficient to charge an offense under Art. 1723, supra.

Appellant's first complaint is to the court's action in overruling motion to quash No. 4 wherein appellant alleged that the indictment was insufficient because it did not negative the exemptions contained in Sec. 9 of Art. 1723, supra. The rule governing when exceptions to the operation of a criminal statute must be negatived in the State's pleading is found in Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308, 311, as follows:

'From what we have said above, and as far as we have been able to ascertain, our courts have uniformly held that when the Legislature sees fit to create exceptions to the general penal provisions of a statute, if such exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to negative such exceptions in the indictment charging such offense.'

See also 1 Branch's Ann.P.C. 2d Ed. par. 536, p. 508, and cases there cited.

The exemptions separately contained in Sec. 9 of Art. 1723, supra, are clearly not a part of the definition of the offense and under the rule above quoted it was not necessary that they be negatived in the indictment.

Appellant next insists that the court erred in overruling his motions to quash the indictment because of certain variances between the allegations of the indictment and the language of the statute defining the offense. We find the allegations contained in the indictment sufficient to allege an offense under Sec. 1(a) of Art. 1723, supra. While in charging the offense, certain words not in the statute were substituted in the indictment such as 'contained' for 'controlled', 'capable' for 'susceptible', 'ignition and explosion' for 'set off or exploded' and 'damage to person and property' for 'injury or harm to any person, animal or plant, or damage property in any manner', the words substituted were equivalent to the words used in the statute. It is the rule that where a word not in the statute is substituted in the indictment for one that is, the indictment is sufficient if the word substituted is equivalent to the word used in the statute. 1 Branch's Ann.P.C. 2d Ed. par. 515, page 496.

Appellant next insists that Art. 1723, supra, is unconstitutional.

It is first contended that the definition of a 'bomb' in Sec. 1(a) is so vague and indefinite as to render the statute invalid. Appellant contends that the statute as written makes it unlawful for any citizen to possess any combustible substance which is controlled within a container and capable of being set off or exploded which would include the possession of certain items of property such as an ordinary kerosene lantern. Appellant insists that the statute as written imposes an unreasonable restriction upon the use and enjoyment of lawful property in violation of the 'due process' clauses of both the State and Federal Constitutions, as was condemned by this court in the recent case of Marney v. State, Tex.Cr.App., 330 S.W.2d 623, in holding unconstitutional Sec. 3 of Art. 1436b, V.A.P.C. which purported to make unlawful the possession of mercury without a bill of sale or other evidence of title.

The definition of a bomb in Sec. 1(a) of the statute does not apply to possession of substances in a container when 'used or intended to be used for industrial, mechanical, laboratory, or medical purposes or for use in the arts and sciences, or for use as economic poisons, antifreeze preparations, or fuels,' under the exemptions contained in Sec. 9 of the statute. It would not be unlawful to possess an ordinary kerosene lantern when the combustible substance therein was 'used or intended to be used' for fuel. So the statute, Art. 1723, supra, does not impose an unreasonable restriction upon the use and enjoyment of lawful property. Clearly it is within the police power of the Legislature to provide that it shall be unlawful to possess a bomb. We hold Sec. 1(a) of the statute valid and constitutional.

We need not pass upon the appellant's attack upon the constitutionality of Sec. 1(e) of Art. 1723, supra, as it is not shown to have been violated. Hoffman v. State, Tex.Cr.App., 20 S.W.2d 1057, and Atwood v. State, 135 Tex.Cr.R. 543, 121 S.W.2d 353.

Section 11 of Art. 1723, supra, provides in part as follows: ...