Mizell v. State
| Decision Date | 04 May 1910 |
| Citation | 128 S.W. 125 |
| Parties | MIZELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Kaufman County; J. S. Woods, Special Judge.
Gliss Mizell was convicted of unlawfully engaging in the occupation of selling intoxicating liquors in local option territory, and he appeals. Affirmed.
John A. Mobley, Asst. Atty. Gen., for the State.
Appellant was tried and convicted in the court below under an indictment charging him with the offense of unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in violation of the law in the county of Kaufman, which had theretofore adopted local option, which was in force at the time of the offense alleged; the indictment being drawn under the provisions of the act of the Thirty-First Legislature (1st Ex. Sess. c. 15), making it a felony for a person to engage or pursue the occupation and business of a retail liquor dealer in local option territory. There were two counts in the indictment, one charging an ordinary sale, and the second count charging pursuing the business. The case was submitted to the jury on the second count charging pursuing the business and occupation, and the trial resulted in a conviction assessing appellant's punishment at two years' confinement in the penitentiary.
We find in the record that preliminary to the trial in the court below the defendant made a motion to transfer this case to the county court of Kaufman county, Tex., because the indictment returned and filed charges an offense which was a misdemeanor, in that the act of the Legislature making it a felony to unlawfully engage in the business or occupation of selling intoxicating liquors was an act of the Legislature passed after Kaufman county had adopted local option, and that the Legislature could not, after the adoption of local option, impose greater penalties than existed at the time local option was put in operation. The second ground of the motion was to quash the indictment because it failed to allege that defendant had made at least two sales of intoxicating liquors in the county of Kaufman within three years next preceding the filing of this indictment. It is a sufficient answer to the first objection to say that this question has been before this court and carefully considered, and that this court has held that the pursuing and engaging in the occupation of retail liquor dealer as a business, and making sales thereunder, constituted an offense separate from the individual sale, and that it was within the power of the Legislature to make such act a separate and distinct offense from the individual sale, and to prescribe a penalty therefor, and that the same could be enforced in any territory where local option prevailed without reference to when the county adopted local option. See Fitch v. State (decided at this term, and not yet officially reported) 127 S. W. 1040. As to the second ground—that is, that the bill of indictment failed to allege that there were as many as two sales made within three years, as provided by the act of the Legislature—we are of opinion that the allegation in the bill of indictment sufficiently meets this objection; the allegation being as follows: "Did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law aforesaid, and which law aforesaid was then and there in full force and effect in said Kaufman county, and that said Gliss Mizell did then and there, on or about the said date, to wit, December 1, 1909, make two different sales of intoxicating liquors to one Tom Calloway, and on or about said date did then and there make different and other sales of intoxicating liquors in violation of said law, to persons to the grand jurors unknown, and did in said county and state, during the months of August, September, October, November, and December, 1909, and January, 1910, anterior to the presentment and filing of this indictment, make more at least than two sales of intoxicating liquors in violation of said law, which was then and there in full force and effect in said Kaufman county." Where the dates are given in the indictment as to when the sales took place, and the dates mentioned exclude positively the idea that they were made more than three years apart, we think this is sufficiently specific to show conclusively that the sales took place within the three years. Had the bill of indictment omitted to give the dates of the different sales, it would then have been necessary to show that it was made within the three years; but, where the dates of the sale are given, and it shows that it was within the three years, this is sufficient. The court, therefore, did not err in failing to quash the indictment.
As this is a new question before this court we will, for the guidance of prosecuting officers, set out in full the second count of the indictment in this case, which is as follows: "And the grand jurors, upon their oaths aforesaid, do further say and present in said court that in said Kaufman county, Tex., on the 19th day of September, A. D. 1903, an election in...
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Slack v. State
...violation of said law, which law was then and there in full force." The indictment in this case is in exact terms of the case of Mizell v. State, 128 S. W. 127, in which the negative allegation was, "in violation of said law, which was then in full force," etc. The court in that case says: ......
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Bell v. State
...and judgment is contrary to the law and the evidence." The indictment is in accordance with the form approved by this court in Mizell v. State, 128 S. W. 125. Local option is shown to be in full force in said county, a number of sales being proven; and, the court having properly submitted t......
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Creech v. State
...them. The indictment follows substantially and fully the form of indictment laid down and approved by this court in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and many cases decided by this court since Appellant pleaded former jeopardy, and raised the question in many ways. The sta......
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Dozier v. State
...the motion, viewed in the light of the record. The indictment is drawn in accordance with the decision of this court in Mizell v. State, 128 S. W. 125, and held valid in several cases since then. See, also, the case of Slack v. State, 136 S. W. 1073, and other cases decided at this term of ......