Slack v. State

• Decision Date: 01 March 1911
• Citation: 136 S.W. 1073
• Parties: SLACK v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 1073

SLACK v. STATE.

Court of Criminal Appeals of Texas.

March 1, 1911.

On Motion for Rehearing, May 3, 1911.

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

R. A. Slack was convicted of pursuing the occupation of selling intoxicating liquors in violation of law, and he appeals. Affirmed.

Callaway & Callaway, L. V. Reid, J. R. Stubblefield, and McGregor & Gaines, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant in this case was indicted by the grand jury of Comanche county, charged with pursuing the occupation of selling intoxicating liquors in violation of law. He was tried, convicted, and sentenced to two years' confinement in the penitentiary.

The defendant filed a motion in the trial court to quash the indictment, which was by the court overruled, and this action of the court defendant assigns as his first ground in his motion for a new trial.

In this case a very able brief has been filed, contending that in indictments of this character, and for all violations of the local option law, the averments must negative all exceptions under which intoxicating liquors can be sold, and that it is not sufficient to conclude, after making all necessary allegations showing that local option is in force in proper form, that the occupation was pursued and sales made "in 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: "We hold that this indictment is valid, and commend it to the prosecuting officers as a precedent in drafting indictments for pursuing the occupation and business of a whisky dealer in local option territory." This opinion was concurred in by the entire court, except that Judge Davidson says: "I concur in holding the indictment should charge that it is necessary to aver in the indictment (1) that the party must be engaged in the business of selling liquor in local option territory in violation of law; (2) that there must be at least two sales in addition to carrying on such business; (3) that the names of the purchasers and dates of sale must be alleged in the indictment. But I dissent from the holding that such acts can be punished in local option territory, where such law was in operation at the time that the law went into effect."

The holding in this case that the indictment herein is valid is approved in the case of Murphy v. State, 129 S. W. 139, and referred to as a form to be followed. Again, in Sutphen v. State, 129 S. W. 144, this form is approved. In the case of Payne v. State, 129 S. W. 1197, while the indictment is quashed on a different ground, yet Presiding Judge Davidson, in rendering the opinion, cites with approval the holding in the case of Mizell v. State, 128 S. W. 125, on the question of the form of the indictment. By reference to our Penal Code, we find that the Legislature, in 1881, passed a law in which it was provided that: "In an indictment for selling intoxicating liquor in violation of any law in this state, it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the person to whom sold, without stating the quantity sold; and under such indictment any act of selling in violation of the law may be prosecuted." Laws 1881, c. 57. In conformity to this law, Judge Winkler, in 1882, in the case of White v. State, 11 Tex. App. 478, holds that an indictment drawn in accordance with its provisions is valid. We are aware of the opinion by Judge Willson, in the case of Mansfield v. State, 17 Tex. App. 470, in which Judge Willson states that this section of the act of 1881 had been repealed, and that it was no longer necessary to allege the name of the purchaser. But, from a careful inspection of the acts of the Legislature from 1881 down to and including the year 1885, when this latter opinion was rendered, it can be seen that the learned judge was mistaken in saying this clause of the act had been repealed by the Legislature. But even had that statement been true, the Legislature, in 1895, re-enacted the provision and brought it forward in the Code of Criminal Procedure as article 452, and it is now the law of this state and has been since 1895, for more than 15 years.

In the case of Williams v. State, 37 Tex. Cr. R. 241, 39 S. W. 664, Judge Hurt, who is recognized as one of the ablest lawyers who ever sat on this bench, says: "Must the indictment negative the fact that the liquor was sold for sacramental purposes, or for medicinal purposes, under the prescription of a physician? The act defining the offense is contained in article 402, Penal Code 1895, and article 3384, Rev. St. 1895. These articles do not refer to the sale of wine for sacramental purposes, nor alcoholic stimulants as medicines in case of actual sickness," etc. These articles (exceptions) are not found in the articles defining the offense, but in separate and distinct articles, to wit, article 403, Penal Code 1895. Under well-settled rules all the elements entering into the offense must be alleged in the indictment. The Legislature cannot relieve the state of the necessity of so framing the indictment as to charge the accused with all the acts and intents which constitute the offense. The question, therefore, arises whether this indictment charges the accused with an offense. It evidently does. It is contended by counsel, however, that, though the exceptions may not occur in the same clause or article, yet, if they are interwoven or ingrafted upon the act which defines the offense, they must be negatived. We do not question the correctness of this proposition in a proper case. An act may be so framed, when taken all together, as to require exceptions to be negatived, though they may not be found in the enacting clause. This, however, is rare. The statute in reference to this offense is perfectly clear.

The statute in this case makes it an offense to pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any territory in this state where the sale of intoxicating liquors has been prohibited by law. The indictment alleges that the sale was not permitted, but specifically alleges it was in violation of said law; the sale of intoxicating liquors being then and there prohibited. If it is contended that it meant that a sale must be illegal under the old act, then Judge Hurt says that the exceptions need not be negatived in the indictment, further than is done in this case.

In the case of Malone v. State, 39 S. W. 1118, Judge Hurt again affirms the rule laid down in the case of Williams v. State, supra. In the case of Loveless v. State, 49 S. W. 601, it is held: "That it is not necessary that the order for the election embrace the exceptions, and because the exceptions for medicinal and sacramental purposes are not contained in the order for the election or in the order declaring the result, and the order absolutely prohibits the sale of intoxicating liquors in the local option precinct, does not inhibit the sales for such purposes. It has reference to such sales as can be prohibited under the local option law, and no more, citing Williams v. State, 37 Tex. Cr. R. 241 ."

In the Encyclopedia of Law, vol. 22, pp. 285, 286, a recognized standard authority, the following rule has been laid down: "Power of the Legislatures. It is within the power of the Legislatures under such constitutional provision to prescribe the form of the indictment or information, and such form may omit averments regarded as necessary at common law; but the Legislature, while it may simplify the form of an indictment or information, cannot dispense with the necessity of placing therein a distinct presentation of the offense containing allegations of all the essential elements. The constitutional right of the accused to demand the nature and cause of the accusation is not infringed by statutes providing that accessories may be indicted as principals; dispensing with an allegation of time when it is not of the essence of the offense; or obviating the necessity of laying a venue; of negativing a statutory exception, or of making a particular description of certain kinds of property. And it has been held that the Legislature may provide that it shall be unnecessary to specify the person whom it was intended to defraud in averring an intent to defraud. Where a particular offense, such as homicide, is divided into degrees which are defined by statute, the indictment may follow the general form without specifying the elements which fix the particular degree, and still fulfill the requirement of informing defendant of the nature and cause of the accusation. But the Legislature cannot provide that if, on the trial of an indictment for a specific offense, it is found that the offense has not been committed, but that another has, a conviction may be had for the offense proved, or that a person indicted for an offense consisting of one state of facts may be tried and convicted under that indictment of an offense consisting of a different state of facts. In some cases the courts have intimated that an indictment in the statutory form cannot be held to infringe the constitutional privilege of the accused to be informed of the nature of the charge, when the accused is entitled to secure a specification of the particular acts relied on by the government through a bill of particulars," citing many authorities.

Legislation by statute has done away with the necessity of negativing the exception in this character of case, even if it was necessary at common law, by article 452 of the Code of Criminal Procedure. In the case of State v. Higgins, 13 R. I. 330, 43 Am. Rep. 26, it is held that the Legislature has power to provide: "It is entirely reasonable, we think, that a...