Sutphen v. State
| Decision Date | 01 June 1910 |
| Parties | SUTPHEN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
Della Sutphen was convicted of pursuing the business of selling intoxicating liquors in local option territory, and appeals. Reversed, and prosecution dismissed.
John A. Mobley, Asst. Atty. Gen., for the State.
This is an appeal from a conviction for pursuing the business and occupation of selling intoxicating liquors in local option territory, and the penalty assessed at five years' confinement in the penitentiary.
The indictment in this case charges that the appellant, on the 11th day of September, A. D. 1909, and anterior to the presentment of this indictment, in the said county of Nacogdoches and state of Texas "did then and there engage in and pursue the occupation and business of selling intoxicating liquors, against the peace and dignity of the state," after an election had been held and it was determined that the sale of intoxicating liquors should be prohibited in said Nacogdoches county. The appellant filed a motion in arrest of judgment on the ground that the bill of indictment failed to allege a violation of law, in that it failed to state that the defendant unlawfully engaged in the occupation and business, and failed to charge that the same was not permitted by law in Nacogdoches county, and because the indictment failed to negative the right to pursue the business in Nacogdoches county.
We are of opinion that the bill of indictment is fatally defective in failing to charge that any sales were made, in failing to set out to whom the sales were made, or the time of the sales, and also in failing to state that the business was not permitted by law. In the case of Keith v. State, 126 S. W. 569, we held that in a prosecution for a violation of Acts 31st Leg. c. 15, providing a punishment for the carrying on of the business or occupation of selling intoxicating liquors in any district where their sale is prohibited, the indictment must negative the fact that the sale was permitted by law. In that case, as well as this, the indictment merely alleges that the defendant did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in said county, and failed to negative the fact that he was engaged in the sale of intoxicating liquors, except as permitted by law. We further held in that case that, the exception being contained...
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Slack v. State
...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 Pr......
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Bell v. State
...to and inclusive of Keith v. State, 58 Tex. Cr. R. 418, 126 S. W. 569, Snead v. State, 55 Tex. Cr. R. 585, 117 S. W. 983, and Sutphen v. State, 129 S. W. 144. This is not only true, but the unbroken line of authorities lay down, affirm, and enforce the further proposition that the Legislatu......
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Roberts v. State
...the statute. Under decisions he cites, his contention is correct. Keith v. State, 58 Tex. Cr. R. 418, 126 S. W. 569; Sutphen v. State, 59 Tex. Cr. R. 500, 129 S. W. 144; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 126; Riggins v. State, 135 S. W. 126; Chapa v. State, 60 Tex. Cr. R. 365, ......