Snearley v. State.

• Decision Date: 10 November 1899
• Citation: 53 S.W. 696
• Parties: SNEARLEY v. STATE.
• Court: Texas Court of Criminal Appeals

53 S.W. 696

SNEARLEY v. STATE.

Court of Criminal Appeals of Texas.

November 10, 1899.

Concurring opinion. For former opinion, see 52 S. W. 547.

HENDERSON, J.

The indictment is objected to on the ground that it fails to set out all of the constituent elements of the offense. The special objection urged is that it fails to charge that appellant engaged in selling liquor under prescription. While the indictment fails to make this averment directly, it occurs to me that the allegations set out in it sufficiently show this fact. The essential elements of the offense are the sale of intoxicating liquor, or the being engaged in the business of selling intoxicating liquor, in local option territory, under a prescription, without having obtained a license therefor. The indictment substantially charges that appellant was engaged in the occupation of selling intoxicating liquors in certain local option territory (describing it) without having paid the tax levied thereon (giving the amount of the tax on the occupation,—state and county), and without having first procured a license. Only one character of sale of intoxicating liquor is permitted in local option territory, and the tax is levied on this particular character of sale; and the allegation in the indictment that the occupation was pursued in the local option territory, without having paid the tax, and without having procured a license therefor, I think is sufficiently definite as indicating the particular occupation appellant was charged with pursuing. This is not a case where two or more occupations in regard to selling liquor can be pursued in the given territory, as was formerly the case where the law authorized a sale and license in quantities less than a quart, and a license for selling in quantities of a quart and over, and levied a different tax. Here only one character of sale is authorized, and only one tax is levied; and the allegation that the occupation was pursued in the given territory, with the amount of tax stated, and that appellant had no license, includes the idea that he was pursuing the only taxable occupation in said territory, in regard to the sale of liquor, on which a tax could be levied. There was no danger here that the party was misled as to the particular offense for which he was indicted, and a conviction thereunder would bar another prosecution for the same offense. I think this is in accord with the view announced in the authorities cited in the dissenting opinion. Woodward v. State, 5 Tex. App. 296; Hewitt v. State, 25 Tex. 722.

It is insisted that the law imposing a tax on the occupation of selling liquor in local option territory is without authority. Of course, if it can be shown that the law in question is violative of any provision of our constitution, or possibly of some fundamental right outside of the constitution, then the proposition advanced by my Brother DAVIDSON is unassailable. While this is not an entirely new question, it has not been before this court in its present shape until now. Both Gibson's Case, 34 Tex. Cr. R. 218, 29 S. W. 1085, and Rathburn's Case, 88 Tex. 281, 31 S. W. 189, were predicated on the law of 1893; and it was simply held that no tax was levied in local option territory by virtue of the occupation tax act of 1893. In Ex parte Bains (Tex. Cr. App.) 45 S. W. 24, the decision was predicated on the idea that the act of 1897 (see Acts 25th Leg. p. 223), levying an occupation tax in local option territory, was operative upon, and changed the status of, the local option law, after it had been voted on by the people. As authority in support of the opinion, a number of cases were cited, in which the question involved was unquestionably an innovation or change in the local option law in the given territory, after local option had been voted on by the people, and made operative in such territory. As in Dawson's Case, 25 Tex. App. 670, 8 S. W. 820, where the legislature extended the time in which another vote could be taken on prohibition to two years, instead of one year, as theretofore, the court held that this enlargement of time could not be extended to territory where local option was in force at the time the new act went into effect. And see Robinson v. State, 26 Tex. App. 82, 9 S. W. 61; Lawhon v. State, 26 Tex. App. 101, 9 S. W. 355. Whatever may be said as to the correctness of those decisions, I do not think the doctrine they announce can be applied to the question here presented. True, I agreed to the Bains Case, but the distinction did not then occur to me, as in that case the tax was attempted to be enforced in territory which had adopted local...