Robert v. State

• Decision Date: 26 January 1921
• Docket Number: (No. 5970.)
• Citation: 234 S.W. 89
• Parties: ROBERT v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 89

ROBERT v. STATE.

(No. 5970.)

Court of Criminal Appeals of Texas.

January 26, 1921.

On Motion for Rehearing, April 27, 1921.

On State's Motion for Rehearing, October 5, 1921.

Appellant's Motion for Rehearing Denied October 26, 1921.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

P. Robert was convicted of a violation of the liquor laws, and appeals. Affirmed.

See, also, 228 S. W. 230.

Harry C. Gerlach, P. C. Del Barto, and F. Charles Hume, Jr., all of Houston, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case the state moves to dismiss the appeal because of a defective recognizance. Said recognizance is as follows:

"This day came into open court P. Robert, defendant in the above-entitled cause, who, together with Frank Bonno, Joe Navarro, and J. G. Trapolino, his sureties, and acknowledge themselves indebted to the state of Texas, in the penal sum of two thousand ($2,000) dollars, conditioned that the said P. Robert, who stands charged in this court with the offense of violation of the liquor law, and who has been convicted of said offense in this court, shall appear before this court from day to day and from term to term of the same, and not depart without leave of this court, in order to abide the judgment of the Court of Criminal Appeals of the state of Texas, at Austin, in this case."

It will be observed that this recognizance does not state that the appellant has been charged with or convicted of any offense known to our law. We have no such offense eo nomine as "violation of liquor law," nor does said recognizance set out whether said charge and conviction was for a felony or a misdemeanor. Same is insufficient under our statutes and all the authorities. Article 903, C. C. P.; Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468; McKey v. State, 87 Tex. Cr. R. 228, 220 S. W. 549.

The motion is sustained, and the appeal dismissed.

On Motion for Rehearing.

At a former day of this term because of a defect in appellant's recognizance this case was dismissed, but, said defect having been remedied, the cause is reinstated and now decided upon its merits.

We do not discuss the various matters raised by appellant involving the validity of what is known as the Dean Act (Acts Second Called Session. Thirty-Sixth Legislature, p. 228), inasmuch as same were fully discussed and disposed of in Ex parte Gilmore, 228 S. W. 199.

Appellant excepted to the following part of the charge of the trial court:

"The state is not required to prove in the first instance that the manufacture of vinous liquor capable of producing intoxication or the possession of any equipment for making such vinous liquor or whisky was not for either medicinal, mechanical, scientific, or sacramental purposes; but, when the evidence shows that the defendant manufactured such vinous liquor or did possess equipment for making such vinous liquor or whisky, then the burden is on the defendant to show that such manufacture or possession was for either mechanical, medicinal, scientific, or sacramental purposes."

That part of the charge quoted does not present a correct statement of the law. The state must allege and proof show that in a cause such as the one now before us, where the charge is a violation of one of the acts forbidden in sections 1 and 2 of said Dean Law, the act charged was not for one of the excepted purposes. Reeves v. State, 227 S. W. 668; Banks v. State, 227 S. W. 670. No rule can be laid down as to the facts necessary in a given case to show that the manufacture, sale, transportation, etc., of such intoxicating liquor was not for one of the said excepted purposes, but it is our opinion that the record must contain sufficient proof of the negative of said exceptions to support such finding by the jury. A general charge placing the burden of proof upon the state as to all the facts in the case is sufficient in ordinary cases; but a charge shifting the burdent of proof and placing same upon the defendant as to any matter necessary to be alleged, and which is not made by statute a defensive issue, is erroneous.

For the error of said charge the judgment must be reversed, and the cause remanded; and it is so ordered.

On State's Motion for Rehearing.

In its motion for rehearing the state urges that the great weight of authority is in favor of the proposition that the burden of proof is on the accused to show himself to be within the exceptions, when the prosecution is under a statute such as the one under consideration, and that we were wrong in holding in our original opinion that the burden of proof was upon the state. We have carefully examined the authorities cited and many others. While the exact question is without precedent in this state, we are led to believe that the contention of the state should be upheld.

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