Hewitt v. State, 25 Tex. 722

Hewitt v. State

25 Tex. 722 | Tex. | 1860

Roberts, J.

The indictment charges that the defendant,, “on the first day of January, A. D. 1858, in the county aforesaid, did retail intoxicating liquors in quantities less than one quart, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” All the proof was that “ the defendant did retail spirituous liquors in quantities less than a quart in the county of Shelby, State of Texas, within twelve months preceding the finding of the bill of indictment in *725this case.” Defendant was convicted. Motions for new trial and in arrest of judgment were filed by the defendant upon the ground that it was not alleged or proved that the defendant had no license at the time of the said selling, which were overruled.

The statute under which this prosecution was instituted provides that “ if any person or firm shall sell or be in any wise concerned in selling spirituous, vinous, or other intoxicating liquors in quantities less than one quart, without first having obtained a license therefor in the manner prescribed by this act, he, she, or they shall be deemed guilty of a misdemeanor,” &c.

“ That in all prosecutions for any violations of any of the provisions of this act, it shall be sufficient to allege and prove that the person charged with any such violation, did sell, or was concerned in selling spirituous, vinous, or intoxicating liquors; and it shall not he necessary to allege or prove the kind of liquor sold, the name of the persons to whom the same was sold, or that the same was sold without license. This act shall, in all cases, he liberally and remedially construed.” (O. & W. Dig, 387, Arts. 1757 and 1759.)

The question is whether or not the legislature can authorize the courts to dispense with the allegation in the indictment, that the liquor was sold “ without having obtained a license therefor.”

The constitution provides that “ no person shall be holden to answer for any criminal charge but on indictment or information, except in cases arising in the land or naval forces, or offences against the laws regulating the militia.”

The definition contained in our Code of Criminal Procedure is that “the indictment is the written statement of a grand jury accusing some person therein named of some act or omission, which by law is declared to be an offence.” (O. & W. Dig., 614, Art. 394.)

At the adoption of our constitution, and for a century previously both in England and America, this is what was understood as constituting an indictment.

Is a person accused of an offence when he is charged simply and only with having retailed spirituous liquors in quantities less than a quart ?

*726If there were a general prohibition against selling liquors in quantities less than a quart, or if the legislature have the power to withdraw the protection from liquor as property, and prohibit its sale entirely and-in any quantity, and had clearly done so by direct enactment, then these words would charge an act to have been done which, by law, is declared to be an offence.

But it is obvious that the legislature - have not attempted to abolish all right of property in liquors, or the right to sell it, either in large or small quantities. They have only sought to regulate its sale by imposing a tax upon those wh# engage in its sale, partly as a regulation of revenue, and partly perhaps as an incidental consideration to discourage its use, and by protecting the community to a certain extent from the evil consequences of its extravagant abuse. In pursuance of this policy, those who engage in the business of retailing liquors in quantities less than a quart, are required first to obtain a license to retail in the manner prescribed. (O. & W. Dig., 386-7.)

All sales of such liquors in quantities less than a quart, are therefore not prohibited, but only such as are made “ without first having obtained a license therefor.” (Art. 1757.) Those only are guilty of a misdemeanor upon whom can be charged the “ omission ” of duty in obtaining the license as required by the law regulating the sale of liquors. The act of sale coupled with the omission, and not, the act of sale by itself, constitute that which, by law, is declared to be an offence. (Art. 1757.) The gist of the offence is the omission of this party. We do not think that the legislature can condemn a particular act as an indictable offence, and then empower the courts in the prosecution of a party for the commission of that act thus condemned, to substitute in the indictment and proof of it a different act, which is not the same, and is not itself prohibited by law. “No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or, in any manner, disfranchised, except by due course of the law of the land.” (Bill of Rights, O. & W. Dig., 14.)

The spirit of this provision in our Bill of Rights would seem to apply to this case with great force. It is addressed to and con*727trols the judiciary as well the legislature. A citizen is deprived of his property by fine, or of his liberty by imprisonment in default of being unable to pay the fine, upon a criminal prosecution, in which he is charged with a particular act, which is itself not prohibited as penal, and he is found guilty for an omission of duty in reference to that act, which is not alleged or proved against him. His conviction can hardly be said to have been by due course of law. (The People v. Toynbee, 2 Parker’s Cr. R., N. Y., 329; Wynehamer v. The People, Id., 421; The People v. Toynbee, Id., 491.)

For when an act is made the subject of a criminal charge, the constitutional provision requiring an indictment or information is at once brought into active force in favor of those who are accused of and prosecuted for said act; and if an indictment be preferred, it must be such an one as the framers of the constitution contemplated. Such an indictment then becomes one of the steps in the prosecution “ in the due course of the law of the land.”

The judgment below should have been arrested upon the motion of the defendant.

Judgment is reversed, and; as the offence is now barred by the statute of limitations, the cause will be dismissed.

Reversed and dismissed.