Morris v. StateMorris v. State
- Reporters:
- , ,
- Before:
- Morrow
The conviction is for violation of the intoxicating liquor law; punishment fixеd at confinement in the penitentiary for a period of three years.
The count in the indictment upon which the conviction rests сontains this language:
“. . . did then and there keep and was interested in keeping a building, room and place used for the purpose of selling spiritous, vinous and intoxicating liquors and malt liquor and medicated bittеrs, capable of producing intoxication.”
The indictment is attаcked upon the ground that it fails to charge that the building was “knowingly” kept for the purposes named in the indictment. The statute Sedares the acts described in the indictment unlawful, and concludes thus:
“. . . and any onе who knowingly does so shall be guilty of violating this Act and shall be punished aсcordingly, etc.” (See Complete Texas Stat., 1920, P. C., Art. 588%oo, p. 83.)
The сriticism of the indictment appears to be well founded. Where the act charged in the offense does not necessarily imply а guilty knowledge, and’ where .such knowledge is the substantive ingredient of the оffense, it is necessary that the indictment contain an averment thаt the act was “knowingly” done. Wharton’s Crim. Proc., 10th *101 ’ Ed., Sec. 210. Particularly is this true whеre the statute denouncing the offense expressly requires that the act be “knowingly done.” The following cases bear upon the question: State v. Stalls, 37 Texas Reports, 440; Simon v. State, 31 Texas Crim. Rep. 187; Fox v. State, 3 Texas Crim. App., 329; Tynes v. State, 17 Texas Crim. App., 126; Barthelow v. State, 26 Texas, 175; Castle v. State, 23 Tеxas Crim App., 287. It is conceived that the nature of the act denоunced as criminal by the statute in question is not one from which guilty knowledgе may be necessarily implied. Moreover, the statute upon which the prosecution rests declares in terms that the act to be criminal must be knowingly done. (See Art. 588%oo, supra.)
In March, 1921, appеllant leased the premises for a year. He was granted permision to assign his lease. This, according to the testimony introduced, was done on October 20, 1921. Holt, his assignee, testified that he had purchased the cold-drink business which appellant had conducted in the building in question. On October 26, 1921, sales of intoxicating liquors were made by persons on the premises, and seven pints of whisky were found there. Appellant on that date was not shown to have been present. Holt also testified that appellant had no interest in the business excеpt that he was to receive part of the money taken in by Hоlt in the conduct of the business sold to be applied on the unpaid part of the purchase price. He was not present whеn the sales were made, and there is an absence of direсt proof shown as to when or how the seven pints of whisky came uрon the premises. The direct evidence, if believed suppоrts the theory of appellant that he had dispossessed himself оf the premises before the offense was cimmitted. To overсome this testimony, the State relies upon the inferences deducible from the facts proved, but not upon direct evidence сonnecting appellant with the commission of the crime. The situation did not warrant the court in refusing appellant’s request for an instruсtion on the law of circumstantial evidence. Miller v. State, 88 Texas Crim. Rep., 77, 225 S. W. Rep., 380, and cases listed therein.
The еrrors pointed out require a reversal of the judgment. It is so ordered.
Reversed and remanded.