142 S.W. 876 | Tex. Crim. App. | 1912
Appellant was indicted by the grand jury of Nacogdoches County, Texas, charged with violating the local option law, and when tried, was convicted and his punishment assessed at the lowest penalty fixed by law, the jury at the time they returned the verdict stating through their foreman that while this was their verdict, they did not believe the defendant had intentionally violated the law.
This brings up virtually the sole question involved in a decision of this case. The defendant testified he did not sell the prosecuting witness any whisky, but he knew he got the whisky, and that while he did tell him that he would not sell it to him, he did state to him that he would loan the whisky to him, and that he expected him to pay the whisky back; that he knew the prosecuting witness got the quart of whisky.
Appellant filed a motion for a continuance on account of the absence of the witness Walter Shaw, by whom he stated he expected to prove, in substance, the same facts as testified to by defendant. Of course, if this loan of whisky constitutes a violation of the law, there was no error in overruling the motion for continuance, as the testimony of the absent witness would be no defense to the prosecution, and especially would it present no ground to set aside the judgment when the jury assesed the lowest penalty, and in returning the verdict stated, in effect, they believed the state of facts and that defendant did not intentionally violate the law. If these facts constitute a violation of the law, it is no defense that there was no intention to violate the law, for a mistake of law excuses no man. (Art. 46, Penal Code.) All persons are required to know the law. (Steinberger v. State, 35 Tex.Crim. Rep.; Jones v. State, 32 Tex.Crim. Rep.; Medrano v. State,
"For the reasons given here, we feel that at this late date to sweep aside the established rule and unsettle the law still further would be, if not judicial usurpation, at least without sufficient warrant in law and utterly inexcusable, and to proclaim ourselves as unworthy *501 to sit on this high tribunal. It should never be forgotten that this is a land where the law reigns supreme. Uniformity and certainty of decision is of the highest importance. We are not so much to declare our personal views of what the law ought to be, but to lay down with as much definiteness and certainty as may be what it is, and, when so adjudged, to enforce it with inflexible fidelity, without passion, and without weakness. If, coming to this high position of power and responsibility, I may, moved by a mere personal opinion, in my day and time, unsettle and undo the work of the great men who have preceded me, consistent, coherent, and undoubted from the day when I was yet a briefless lawyer, the man who on the morrow takes my place will have the same warrant to undo and unsettle the rules we establish, and so on to the end of time. So that, from having a country governed, controlled, and regulated by law, we shall have a land where the mere personal opinions of the judge in office at the time shall rule the fortunes and control and mar the destinies of a free people, and by force of an election, where such punishment was never considered, condemn the citizen to penal servitude as a felon for an act not held to be such under the decisions of this court time out of mind. Against this doctrine of personal rule and unrestrained absolution we resolutely set our faces, and prefer to follow the law as it has been so long and so often declared, conscious of our responsibility, and saying with all sincerity of the law that it must and will be upheld, and that, though it slay me, yet will I trust in it."
This disposition of this question in effect disposes of all the questions raised by appellant in his motion for a new trial, for appellant in his testimony admits he loaned to the prosecuting witness whisky which he expected to be repaid in whisky in like quantity, and as the jury assessed the lowest penalty authorized under our laws, there is no question raised which would authorize a reversal of the case.
The judgment is affirmed.
Affirmed.