Mealer v. State

• Decision Date: 06 December 1911
• Parties: MEALER v. STATE.
• Court: Texas Court of Criminal Appeals

145 S.W. 353

MEALER v. STATE.

Court of Criminal Appeals of Texas.

December 6, 1911.

On Motion for Rehearing, March 27, 1912.

Appeal from County Court at Law, Dallas County; W. F. Whitehurst, Judge.

R. V. Mealer was convicted of violating the prohibition law, and appeals. Affirmed.

Barry Miller, for appellant. R. M. Clark. Co. Atty., Currie McCutcheon, Asst. Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On April 25, 1910, the county attorney of Dallas county filed an information against appellant on affidavit of Bennett charging appellant with unlawfully making a sale of intoxicating liquors to Scott on August 1, 1909, in a certain precinct in Dallas county, describing it, after an election had been held therein and the voters had voted in favor of prohibition and after the proper order declaring the result had been made, passed, and entered by the commissioners' court of that county and the order had been properly published on the order of the county judge for the length of time required by the statute. There was no allegation in the affidavit or information when the election was held, declared carried, and the proper orders made and publication had. The appellant was convicted and appealed.

There are but two questions to be decided: First, the appellant made a motion to quash the complaint and information on the ground because they fail to show the date when said election was held, whether it was before or after the act of the Legislature making such sale a felony. The question was also raised by a motion in arrest of judgment. The court overruled both motions and the appellant properly saved his point by proper bill of exceptions and motion for new trial.

The act making such sale a felony went into effect on July 24, 1909. The statement of the facts above shows that the election could not have been held, properly declared, the advertisement made, for the time required by law, between July 24, 1909, and August 1, 1909, the date the sale is charged. This is very evident, because the law making it a felony went into effect July 24, 1909, and appellant is charged to have committed the offense on August 1, 1909, within eight days thereafter. Even if an election had been held any time between July 24th and August 1st, prohibition could not, under the law thereunder, have been put in force in said precinct until the proper orders were made and the publication of at least four weeks, which physically could not have occurred between July 24 and August 1, 1909. Hence the offense in this case was a misdemeanor under the previous decisions of this court which seem to have been followed by the last Legislature in enacting the Revised Statutes of this state. P. C. 597, new revision.

This is unlike the case of Head v. State, 141 S. W. 536, this day decided by this court. In the Head Case the sale is alleged to have occurred on September 29, 1909. It will be seen that in that case the requisite length of time from July 24th to September 29th elapsed to have held, declared, and properly published the prohibition election so as prima facie to make the offense a felony as we held in the Head Case. The court did not err in overruling appellant's said motions in this case.

The other question is to the refusal of the court to give this charge requested by appellant: "You are instructed that if the defendant was merely a hired hand of Anderson, the owner of the place where intoxicating liquor was sold S. B. Scott, if any was sold him, and did not know there was any intoxicating liquor for sale there, and did not sell S. B. Scott intoxicating liquor knowingly, then you will acquit the defendant." The appellant's contention is that this charge was correct on the question of a mistake by appellant in selling the intoxicating liquors; such mistake having been made in good faith.

Our statute on the subject of mistake of fact is as follows: "Art. 46. No mistake of law excuses one committing an offense; but, if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense." "Art. 47. The mistake as to fact which will excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense." These articles show, as stated in article 47, that such mistake must not arise from a want of proper care on the part of the person committing the offense which is clearly omitted from the said special requested charge. Therefore that charge did not properly present the law on the subject to the jury.

This court in Lawrence v. State, 20 Tex. App. 536, said: "While a court may qualify or modify an instruction which is asked so as to make it present the law as the court perceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous instruction, but may refuse it outright."

Again this court in Sparks v. State, 23 Tex. App. 448, 5 S. W. 135, in construing our statutes on the subject of giving written requested charges in misdemeanor cases, said: "This statute does not make it obligatory upon the court to prepare and give a written charge when requested to do so by the parties, but only requires the court to give or refuse such charges as are asked in writing. If charges are asked in writing, the court shall give or refuse them, with or without modification. But, if the court refuses such as are asked, it is not required to supplement them by any charges of its own; it may still, if it desires, decline to give any written charge in the case. In misdemeanors, the object and policy of the law seems to be to relieve the court of the burden and necessity of giving charges, unless the parties deem it necessary that such instructions as they may prepare in writing should be given. Such as are thus prepared may or may not be given. The court should not give instructions which it does not believe to be the law, and it is not even required to modify such charges, but may refuse them absolutely."

This court has always adhered to this doctrine. In Hobbs v. State, 7 Tex. App. 118, the court discusses fully and gives the reasons for the doctrine.

This is further made certain since the amended enactment of the Code of Criminal Procedure 1911, art. 723 (new revision, art. 743). There is therefore no reversible error presented on this ground.

It is unnecessary to discuss the facts in this case. The testimony of several of the witnesses for the state showed that on the date charged they went to the place where the appellant was at work; that he was behind the bar with another man waiting upon the customers. That Scott, the party to whom the illegal sale is charged to have been made, ordered beer; that it was sold to him by the appellant; that it was then drank by him and his associates in the place where appellant was at work behind the bar; that his companions, and others immediately thereafter, ordered of him beer again, which he sold to them and which they again drank in his presence. Other witnesses showed that he had been at work behind the bar at this same place for some length of time, and that various parties about that time had driven up and ordered beer and that appellant had served it to them; that this occurred very frequently about this time.

It was also shown by the witnesses that lunch and meals were served at this same place, and that soft drinks, such as lemonade, soda water, etc., were also served there during all this time. It was also shown that there were eight...