Moreno v. State , 143 S.W. 156 ( 1911 )

On Motion for Rehearing.

HARPER, J.

At a former day of this term this case was affirmed. Appellant has filed a motion for rehearing and an able brief in which he contends that the court erred in three particulars, and out of respect to the earnest and forcible presentation thereof we will discuss each of them again.

1. Appellant insists that we were in error in holding.that the affidavit upon which the prosecution is based is sufficient, and, while conceding that the authorities cited in the original opinion so hold, yet he insists that we should not “travel in foreign fields.” Appellant insists that the words “then and there” do not sufficiently designate, the place of sale, and cites us to the case of Williams v. State, 38 Tex. Or. R. 377, 43 S. W. 115. In that case it is held that it must be alleged that the sale took place in the prohibited territory. This is correct; but, having alleged the time and place once, the words “then and there” are words of reference and fix the time and place as previously alleged.

In the case of Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427, this court holds: “We are of opinion that the indictment is substantially sufficient in both its counts, and that the defendant’s exceptions thereto and his motion in arrest of judgment were properly overruled. The locus in quo of the house burned is alleged sufficiently; the allegation being ‘a certain house then and there occupied, owned and, controlled by him, the said Baker,’ and the words ‘then and there’ referring to the time and county previously stated.”

In the case of State v. Slack, 30 Tex. 355, Judge Willie says: “The words ‘then and there,’ as used in an indictment, are words of reference, and when time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words, and it will have the same effect as if the time and place were actually repeated.”

In the case of Smith v. State, 36 Tex. Or. R. 443, 37 S. W. 743, this court held: “Appellant moved to quash the indictment, on the ground that, after the charge of breaking, in the language introducing the charge as to the intent to commit theft, the phrase ‘then and there’ was not used. In the indictment the charge of breaking is coupled with the charge as to the intent by the conjunction ‘and.’ Ordinarily, where ’ the evidence consists of a series of connected acts, it is necessary, instead of repeating the time and place originally alleged, to use the phrase ‘then and there.’ See Bishop’s Crim. Proe. § 412. In this case, the act was the breaking, and we think that the use of the conjunction ‘and,’ coupling the intent with the breaking, was sufficient. It makes the indictment plain and intelligible, and suf-ficently extends the original allegation of time and place to the succeeding averments in the indictment. See Harris v. State, 2 Tex. App. 102.”

In the case of Butler v. state, 46 Tex. Or. R. 289, 81 S. W. 743, this court held: “Appellant questions the indictment on the ground that in the closing part of the indictment, to wit, the allegation, ‘and the said L. A. Butler did unlawfully and fraudulently take, misapply, and convert the same to his own use and benefit,’ etc., that it fails to show such a connection with what precedes as to embrace a proper allegation of time and venue. We do not believe this contention is sound. The indictment pursues the ordinary form laid down in White’s Annotated Penal Code, § 138, omitting, however, in said clause above referred to the allegation, ‘then and there’ after the word ‘did.’ However, the indictment after alleging that he was county treasurer, and said funds being $3,000 current money of the United States of America of the value of $3,000, came into his possession by virtue of his said office, and was then and there the property of Ward county, Tex., and the .said L. A. Butler did unlawfully, as above stated, etc. We think the conjunction ‘and’ here sufficiently shows the connection, and carries forward with it the allegations ‘then and there,’ showing the act of conversion was committed at the time and place before alleged.” Campbell v. State, 43 Tex. Or. R. 604, 68 S. W. 513.

In Bishop’s New Criminal Procedure, it is stated: “When an indictment has stated one time and one place, whether in one count or more, each repetition thereof may, and in just propriety should, be.laid as occurring ‘then and there’ instead of by the longer form of expression.” Section 407. Bouvier’s Law Dictionary thus defines the words: “ ‘Then and there’ — words of reference, and when the time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words.” Hughes Criminal Law, § 2726, says: “If the words ‘then and there’ precede every material allegation (after the time and place have been stated at the beginning of the indictment), it is sufficient.” See, also, Am. & Eng. Ency. of Law, vol. 28, p. 129; Ency. of Pleading & Prac. vol. 10, p. 519; Cyc. vol. 22, p. 321; Words & Phrases, vol. 8, p. 6946. In these references there are numerous eases not only from this state but almost every state in the Union.

, 2. Appellant’s second contention is that the facts showing that appellant purchased the beer at the request of an officer, and delivered a portion of it to him, knowing that appellant would be prosecuted, the court erred in holding that the prosecuting witness Duncan was not an accomplice. In the original opinion we cite the article of the Penal Code providing that a purchaser of intoxicating liquors shall not be ,held to be an accomplice. Appellant insists that this article covers only those buying in the usual course of trade, and does not include one who buys at the request of an officer knowing'that a prosecution will be based thereon. This question has been before this court frequently and decided adversely to appellant’s contention. In the case of Walker v. State, 72 S. W. 401, this court held: “Alexander was the purchaser, and Hightower was president of the anti-saloon league, who hired Alexander to ferret out violations of the law, and it may be conceded that Alexander induced appellant to sell him the whis-ky for the purpose of instituting criminal proceedings against him, and it is held that neither of them is an accomplice under article 407 of the Penal Oode.” See, also, Marmer v. State, 47. Tex. Or. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 155, 109 S. W. 370; Ross v. State, 53 Tex. Cr. R. 295, 109 S. W. 152; Trinkle v. State, 59 Tex. Cr. R. 257, 127 S. W. 1060; Terry v. State, 46 Tex. Cr. R. 75, 79 S. W. 320; Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583.

3. Appellant insists that the court erred in holding, in a case wherein it is proved that one sold beer, and no question is raised in the evidence as to it being an intoxicant, that the court will take judicial knowledge that beer is an intoxicating liquor. We discussed this question at length in the original opinion; but as appellant insists that, as court held in the case of Potts v. State, 50 Tex. Cr. R. 368, 97 S. W. 477, 7 L. R. A. (N. S.) 194,123 Am. St. Rep. 847, and other cases, we did not judicially know that beer was an intoxicating liquor, we should adhere to that line of decisions. In the original opinion we stated there had been a conflict in the decisions of this state, for, while this court was holding that it did not know that beer was an intoxicant, the civil courts had been holding otherwise. However, we will frankly say that, although the decisions of this court on that question did not appeal to our judgment, we might have followed them, as we have done in other instances, had not the Legislature provided by section 34 of chapter 17 of the Acts of 31st Legislature (1st Called Sess.): “The term intoxicating' liquor as used in this act shall be construed to mean fermented, vinous or spirituous liquors or any composition of which fermented, vinous or spirituous liquors is a part.” Every one knows that beer is a fermented liquor, and is a composition containing spirituous liquor as well as being a fermented liq-our. If a person in a precinct where prohibition is not in force sells beer, and is prosecuted for selling beer without having obtained a license to do so, by force of this statute this court must take judicial knowledge that beer is an intoxicating liquor. If in another precinct in the same county, where prohibition is in force, a person sells “beer,” appellant insists this court must hold it does not judicially know anything about it. Such position would be an absurdity, and as the great weight of authority holds that the courts judicially know that beer is an intoxicant, in accordance with these decisions, and as the above statute requires this court to take notice of its intoxicating quality in nonlocal option territory, we held, and still hold, that the members of this court are not the only persons in Texas who will continue in ignorance, and in one class of cases hold they do not know anything about beer, and in another hold that they do.

[10J Personal knowledge we may not have, but judicial knowledge can b.e ae-, quired by facts which one has learned through former litigation (Hatch v. State, 11 Tex. 70S), and, if there is any one question on which this court ought to have information by reason of litigation thereon, it is what is and what is not an “intoxicating liquor.” As shown in the original opinion, every official in Texas (outside of this court), whose official duties require him to do any act in connection with our license and prohibition laws, has long ago taken notice that beer is an intoxicating liquor, and requires no proof thereof. Courts may and properly should take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Cowell v. State, 16 Tex. App. 61. The general rule is that courts will take judicial notice of such things as are or should be generally known in their respective jurisdictions, and courts will extend the scope of judicial knowledge so as to keep proper pace with the rapid advance of art, science, and general knowledge, when the facts are of such an age and duration as to have become a part of the common knowledge of well-informed persons. Minnesota v. Barber, 136 U. S. 321, 10 Sup. Ct. 862, 34 L. Ed. 455; McDaniel v. State, 76 Ala. 1; People v. Mays, 113 Cal. 618, 45 Pac. 860; State v. Main, 69 Conn. 133, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30; State v. Braskamp, 87 Iowa, 590, 54 N. W. 532; Kilpatrick v. Commonwealth, 31 Pa. 198; Austin v. State, 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703. In the case of Aston v. State, 49 S. W. 385, this court says; “Appellant’s third contention is that the bottle exhibited by the witness Lillard, and which he stated he purchased from defendant, is not shown to have been intoxicating liquor. The proof shows that the prosecuting witness bought whisky of appellant, and it is common information that whisky is a spirituous liquor, distilled from corn and vegetables, and is highly intoxicating. It follows that the court did not err in charging the jury as to whether or not the defendant sold intoxicating liquor, because the courts take judicial knowledge of the fact that whisky is an intoxicating liquor” — citing Am. & Eng. Ency. of Law, p. 582; Redding v. State, 91 6a. 231, 18 S. E. 289.

[11] Appellant lays great strength on the proposition that for the court to take judicial notice that beer is an intoxicant is indulging a presumption againát a defendant. How it can be said that to take judicial notice that beer is an intoxicant is any more indulging a presumption against a defendant than to take judicial notice that whisky is an intoxicant, we cannot comprehend. When the courts take judicial notice of a fact, it is because it is a matter of common knowledge, and a defendant, as well as every other well-informed person, is presumed to know it, and to take as. proven a fact so well established that every one knows it, is not indulging a presumption against a defendant; it is merely accepting what is already known by all men of any information and capable under our laws of serving on juries. What is the necessity or use of proving a fact that if every man on the jury was sworn he would state he knows from common knowledge, and, if every juryman summoned in Texas was asked if he knew whether or not whisky produced intoxication, he would answer it did. And it is a fact equally as well known by every man summoned, or that can be summoned on a jury in Texas, the article of commerce known and called “beer” as manufactured, bought, sold, and drank in this state, is intoxicating.

Appellant cites us to five Indiana cases; but if he had investigated further he would have learned that all those cases had been specifically overruled in the case of Myers v. State, 93 Ind. 252, in this latter case the court saying; “Webster defines beer to be ‘a fermented liquor made from any malted grain, with hops and other bitter flavoring’ matters.’ In other words, it is a malt liquor, which the same author declares to be ‘a liquor prepared for drink by an infusion of malt, as beer, ale, porter, etc.’ It may, therefore, be said that beer is a liquor infused with malt, and prepared by fermentation for use as a beverage. As a consequence, when ‘beer’ is called for at a place at which intoxicating drinks are sold, the bartender, having in view the primary meaning, as well as the common use of the word, is justified in inferring, and must reasonably infer, that malted and fermented beer is wanted. If any other kind of beer is desired, it is expected that qualifying words wall be used, such as spruce beer, root beer, small beer, ginger beer, and the like, thus attaching a remote and secondary meaning to the word ‘beer,’ as descriptive of particular beverages. When, therefore, a witness testifies to the sale or giving away of beer under circumstances which make the sale or giving awmy of any intoxicating liquor unlawful, the,J prima facie inference is that the beer was of that malted and fermented quality declared by the statute to be an intoxicating liquor, and the court trying the cause ought to take judicial notice of the inference wdiieh thus arises from the use of the word ‘beer’ in its primary and general sense. These views are fully sustained by the recent case of Briffitt v. State, 58 Wis. 39 [16 N. W. 39, 46 Am. Rep. 621].” See, also, the other later cases cited from the Indiana Supreme Court in the original opinion.

The great length of the original opinion and this opinion -will prevent us from taking up and discussing each case cited by appellant ; but if he will investigate he will find that the great weight of authority in the United States holds that the courts will take judicial notice that beer is an intoxi-eating liquor, and that in those states where it has been heretofore held that the courts did not know that beer is an intoxicant, as the years go by, and the information gets more generally disseminated that beer will produce intoxication, those courts are keeping abreast of the times and are overruling their earlier decisions, as in Indiana, and holding that the courts do take judicial notice that beer is an intoxicant. At one time when beer had just begun to be manufactured and used as a beverage in the United States (and this is in the memory of some men now living), it may be that it was not a matter of common knowledge that it would produce intoxication; but its manufacture, use, and sale has become so general in the United States in this day and time 'that no man with intelligence can longer feign ignorance of a fact that is so generally known and accepted to be a fact. Many authorities other than those quoted in the original opinion could be quoted and cited, but we deem it unnecessary.

The motion for rehearing is overruled.