22 S.W. 22 | Tex. Crim. App. | 1893
Appellant was convicted for selling liquor to one Luskin Taylor, a minor, and his punishment assessed at a fine of $25. The indictment was presented in the District Court on the 29th of December, 1891. The transcript from the District Court was filed in the County Court on the 3rd of February, 1892. On the 1st of February, appellant, by counsel, filed a plea, which was in the nature of a plea to the jurisdiction of the County Court, predicated on the fact that the case had not then been properly transferred from the District Court to the County Court. This plea was filed thirteen days before the case was called for trial. On the 16th of February, 1892, when the case was called for trial, the plea was submitted and overruled. In this there was no error, as the transcript had been on file thirteen days. The cases cited are not in point.
The second assignment presents the question, must the State prove the accused did not have the written order from the parent or guardian, or some one authorized to give such order, or must the accused produce or establish the fact, that he had such order? After mature reflection, we are of opinion, that the burden is on the accused. *38
The court charged the jury in regard to the knowledge of the accused as follows: "You will look at all the testimony surrounding the transaction, and as it is impossible to ascertain what a man really knows or does not know, you will ascertain whether the facts and circumstances surrounding the transaction satisfy your minds, beyond a reasonable doubt, that defendant had knowledge of, or by the use of ordinary care, diligence, and prudence would have known, the age of said Luskin Taylor; for the law holds a man responsible for not exercising such ordinary care, prudence, and diligence as a man of ordinary care and prudence would exercise in managing his own private affairs. So, under the explanation, you will find whether or not the defendant sold said liquor knowingly."
The rule announced in these instructions does not apply to this offense. Why? Because knowledge is an element of the offense, and the State must allege and prove that appellant, when he sold the liquor, knew that the vendee was a minor. This must be established beyond a reasonable doubt. The accused is not required to make any proof. He can rely upon his plea of not guilty, and hold the State to prove every element composing the crime, unless the proof of a fact is peculiarly within his power and ability; namely, in this case, the written consent of the parent, etc. If the statute had defined the offense as follows, "Any person who shall sell or give, or cause to be sold or given, any spirituous, vinous, or intoxicating liquors to any person under the age of 21 years, without the written consent of the parent or guardian of such minor, or some one standing in their place or stead, shall be fined not less than $25 nor more than $100," upon the trial the State would have to prove the sale of liquor, prove the vendee was a minor, prove time and venue, and the case would be made, unless the accused relied upon a mistake of fact as to the age of the vendee. Relying upon a mistake of fact, he would be held to make clear proof that he exercised caution, and was diligent in making inquiry and investigation to ascertain the truth. The weight of authority permits him to prove the mistake of fact and the use of diligence as a defense. Massachusetts and Wisconsin deny this right to the accused. This question is not before us in this case, because knowledge is made an essential element of the offense. The judgment is reversed and the cause remanded for another trial.
Reversed and remanded.
Judges all present and concurring. *39
