Sproulen v. State , 97 Tex. Crim. 561 ( 1924 )

Appellant was convicted in the District Court of Fannin County of possessing intoxicating liquors for purposes of sale, and his punishment fixed at one year in the penitentiary.

The questions presented herein are mainly those raised and discussed in Walker v. State, No. 8212, opinion on April 2, 1924. In the instant case, in his argument to the effect that the exceptions to the liquor law are part of the substantive description of the offense and therefore the indictment failing to negative such exceptions was defective, appellant cites and quotes from Rice v. State, 38 S.W. Rep., 801. Said case was for statutory rape and the indictment failing to negative the fact that the prosecutrix was the wife of the accused, was held fatally defective. To us it seems plain from a reading of the statute there involved which forbade carnal knowledge of a female other than the wife of the accused if she be under a named age, that to describe the offense in the indictment it should be affirmatively alleged that the injured female was not the wife of the accused; but the court in its opinion in the Rice case, supra, rested same on the proposition that the so-called exception was a part of the enacting clause in the statute. We quote from said opinion:

"It is different where the exception is not contained in the enacting clause, but in a different, substantive clause, subsequent to the enacting clause."

We think the rule is met if the exception be in a separate section either prior or subsequent to the enacting clause. Appellant further cites Colchell v. State, 23 Texas Crim. App., 584. The opinion in that case is also based upon the proposition that the exceptions to the gaming statute were a part of the enacting clause and should be negatived for that reason. He also cites Williamson v. State, 55 S.W. Rep., 568. This case is one similar in principle to the case of Hewitt v. State, 25 Tex. 722 [25 Tex. 722], which is discussed at some length in the opinion in Walker v. State, supra. The question was that one who was charged with pursuing an occupation without a license, was not sufficiently charged in the indictment unless it be alleged that his pursuing said occupation was without a license. Potts v. State, 74 S.W. Rep., 31 is also relied upon by appellant. This case is exactly like the Williamson and Hewitt cases above mentioned and is not in point in the instant case. The pursuit of a useful occupation not inherently harmful may be regulated by statute requiring that a license or occupation tax thereon be fixed and paid, and it would be manifest that to merely charge one with pursuing such occupation would charge him with no offense, and that in order to insert or set out that which is absolutely necessary to an allegation of the gist of the offense, it should be stated that the pursuit of such occupation was without a license. Fleeks v. State, 83 S.W. Rep., 381, is also cited. That case was reversed because the statute under which the prosecution was brought was held to be repealed by a subsequent statute, and we find nothing in it sustaining appellant's contention. Thweatt v. State, 95 S.W. Rep., 517, is referred to. This is a case brought under the law which was held to have repealed a former statute in Fleeks v. State, supra. In the Thweatt case the court held it necessary to negative the exceptions set out in the statute referred to because they were contained in the enacting clause. We are now discussing that proposition. Prior to the 1921 amendment to the Dean Law we held the same thing with regard to indictments for the violation of said law. Lowery v. State, 79 Tex. Crim. 382, 185 S.W. Rep., 7, is cited. In that case this court held that what was claimed to be an exception and contained in the enacting clause, was no more than a statutory provision fixing matters which might be pleaded as a defense, and that it was not necessary that same be negatived in the indictment.

There is but one bill of exceptions in this record which complains of the introduction of a confession made by appellant. No ground of the exception is set out in the bill. We have examined the confession carefully and observe nothing in it which supports any legal ground of objection which might be made.

The evidence supports the charge. No error appearing in the record, an affirmance will be ordered.

Affirmed.

ON REHEARING. June 11, 1924.