39 S.W. 664 | Tex. Crim. App. | 1897
Conviction for violating local option law. The indictment was presented in the District Court, and transferred to the County Court of Collin County. Appellant pleaded to the jurisdiction of the County Court, because the order transferring the case was not a legal order. It makes no difference whether or not the District Court had adjourned when the order for and the transfer were made. The record shows that the indictment was returned into open court by the grand jury. In the plea to the jurisdiction are improperly embraced (but we will consider the same) grounds in support of a motion to quash the indictment, because it does not charge an offense; that it is vague, indefinite, and uncertain; does not state facts, but merely charges conclusions; does not allege that the election has been held for the purpose of determining whether or not the sale of intoxicating liquors should be prohibited in said district; does not charge that the sale had been prohibited by the proper order; does not allege that the local option law was in full force and effect at the time of the sale; does not negative that the sale was of wine for sacramental purposes, or that the liquor was for medicine in case of actual sickness. We have carefully examined this indictment, and find it to be correct. It alleges that the election had been held in that subdivision of the county, that the Commissioners' Court of said county had passed an order to that effect, and that said order had been published as required by law, and that said order was in full force and effect (which is not necessary). Must the indictment negative the fact that the liquor was sold for sacramental purposes, or for medicinal purposes, under the prescription of a physician? The act defining the offense is contained in Art. 402, Penal Code 1895, and Art. 3384, Rev. Stat., 1895. These articles do not refer "to the sale of wine for sacramental purposes, nor of alcoholic stimulants as medicine in case of actual sickness," etc. These exceptions are not found in the articles defining the offense, but in a separate and distinct article, to-wit: Art. 403, Penal Code 1895. Under a well-settled rule, all of the elements entering into the offense must be alleged in the indictment. The legislature cannot relieve the State of the necessity of so framing the indictment as to charge the accused with all the acts and intents which constitute the offense. The question, therefore, arises whether this indictment charges the accused with an offense. It evidently does. It is contended by counsel, however, that though the exceptions may not occur in the same clause or article, yet, if they are so interwoven or ingrafted upon the act which defines the offense, they must be negatived. We do not question the correctness of this proposition in a proper case. An act may be so framed, when taken all together, as to require exceptions to be negatived, though they may not be found in what is termed the enacting clause. This, however, is a rare case. The statute in reference to this offense is perfectly clear. The exceptions are not ingrafted in any way upon the enacting clause. The enacting clause is full and complete without the exceptions; can be read and understood without the exceptions; and no doubt the exceptions were placed in a *242 separate article, in order to the State of doing just what appellant contends should have been done, to-wit: negativing the exceptions. See this subject discussed in Rice v. State, ante p. 36. Over the objection of the appellant, the State introduced the order for the election. The order for the election was in proper form. The election was to determine whether or not the sale of intoxicating liquors should be prohibited in said subdivision, in accordance with the law. The notices were property published. Other objections were made to the order, but they have been passed upon by this court, and held not well taken. The State introduced in evidence the order of the Commissioners' Court of Collin County declaring the result of the election, and prohibiting the sale of intoxicating liquors, etc. Divers objections were interposed to the admission of this order. We have examined all of them, and consider none of them well taken. Most, if not all, of them have been heretofore passed upon by this court in other cases. There was no error in charging the jury that local option was in force in said subdivision. There was no act which was necessary to be done in order to a valid election in regard to which there was a conflict in the evidence. The judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for a rehearing, filed the 8th of March, 1897, was overruled without a written opinion. — Reporter].
