Slack v. State ( 1911 )

I fully concur in the opinion and disposition of this case by Judge Harper.

I will not attempt, because I think it unnecessary, to discuss at any length the question of the sufficiency of the indictment in this case. But I will simply give some of the rules and statutes which I think particularly applicable to the question.

I think it is elementary that it is competent for the Legislature to enact rules for the construction of statutes, present or future, and when it has done so each succeeding Legislature, unless the contrary intention is plainly manifested, is supposed to employ words and frame enactments with reference to such rules. Such statutory rules of construction may be only declaratory of the common law, or they may operate to change the common law rule of construction. It is the duty of the courts to give such construing acts and rules their practical application as far as possible. 36 Cyc., 1105; Snyder v. Compton, 87 Tex. 374 [87 Tex. 374]; Great Northern R.R. v. U.S., 208 U.S. 452. It seems that one of the common law rules for the construction of statutes is to this effect, where an exception is in the enacting clause or is incorporated therein by words of reference, the indictment must negative the facts that constitute the exception. This rule is qualified, or this is also a rule on the same subject, to wit: A negative averment need not be so minute or so nearly in the statutory words as must an affirmative one; but any negation in general terms covering the entire substance of the matter will suffice. Bish. Cr. Pr., sec. 641. Our Supreme Court, when it had criminal jurisdiction, on the subject of sufficient averments to negative exceptions in a statute, in the case of State v. Duke,42 Tex. 455, pointedly said: "In regard to some of these averments it is held that whatever amounts to a substantial negative is sufficient."

But as I conceive, we do not have to depend upon the rules of the common law for the sufficiency of such pleadings altogether, because our Penal Code and Code of Criminal Procedure have the following rules, or statutory enactments, on the subject which I think have a bearing upon this subject and necessarily control the courts in the use of the common law rules of construction if in conflict therewith. They are: Penal Code, article 4: "The principles of the common law shall be the rule of construction, when not in conflict with the Penal Code or Code of Criminal Procedure, or with some other written statute of the State."

The Code of Criminal Procedure has the following: Article 25: "The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: the prevention, suppression and punishment of crime."

Article 448: "An indictment for any offense against the penal laws of this State shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. . . ."

Article 462: "Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."

Article 464: "An indictment shall not be held insufficient nor shall the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant."

Article 452: "In an indictment for selling intoxicating liquors in violation of any law of 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 proved."

Evidently this court had those statutes and rules in mind when it laid down the form of the indictment under this statute in the case of Mizell v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 127, which was afterwards approved by this court in Murphy v. State, 59 Tex.Crim. Rep., 129 S.W. 138; Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. 144, and Payne v. State,60 Tex. Crim. 322, 129 S.W. 1197. And I think, tested by all these rules and decisions, the indictment in this case sufficiently negatived the exceptions contained in the statute defining the offense.

ON REHEARING. May 3, 1911.