Gilbreath v. State , 107 Tex. Crim. 110 ( 1927 )


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  • The offense is denounced in the Acts of 1909. In Art. 1054, Vernon's Tex. P. C., 1916, it is declared that one who "knowingly" gives intoxicating liquor to a minor shall be guilty. As the offense is now defined, the word "knowingly" is eliminated. See Art. 693, Vernon's Tex. P. C., 1925. It was therefore not incumbent upon the state to prove that the appellant knew that Adair was a minor. To defend upon the ground of lack of knowledge, it would be necessary that the facts bring the transaction within the statute upon the subject of mistake, wherein it is declared that a mistake of fact not arising from a want of proper care may excuse the commission of a criminal act. See Art. 41, P. C., 1925. In construing the statute in which the word "knowingly" is absent, it has *Page 113 been held under the revision of the Code that a mistake of fact was nevertheless available as a defense. See Simpson v. State, 58 Tex.Crim. Rep., touching the presence of a minor in a pool hall; Reed v. State, 53 Tex.Crim. Rep.; Covington v. State, 51 Tex.Crim. Rep.; Patrick v. State, 45 Tex. Crim. 588, applying to the sale of intoxicating liquor. In Vaughn v. State, 86 Tex.Crim. Rep., a number of precedents are cited. The case involved the alleged violation of the pure food law, from which, in the amendment of the statute, the word "knowingly" had been omitted. It was said:

    "The omission of this element in the new statute * * * implies an intent that in future prosecution it should not be incumbent upon the state to allege or prove guilty knowledge with reference to the affirmative acts prohibited." (Vaughn v. State, 86 Tex.Crim. Rep..)

    See Ruling Case Law, Vol. 11, p. 1128; also notes in Vernon's Tex. P. C., 1925, Vol. 1, pp. 40 and 41.

    At night, two men in an automobile presented themselves at the place of abode of Clarence Adair. One of them called him. He went to the automobile and was handed a jar of whiskey. He drank some of it. He recognized one of the men as Dickson. He did not know the appellant. According to the judgment of the witness, the voice of the person calling him was not that of Dickson. The appellant did not testify, but introduced evidence tending to combat the idea that he was an actor in the transaction at all. That theory was presented to the jury and determined in favor of the state. Adair was twenty years of age, weighed 150 pounds and was five and one-half feet tall.

    Appellant contends that because of the size, weight and appearance of Adair, an instruction should have been given to the jury to acquit the appellant if he did not know that Adair was a minor, and it is upon the refusal to instruct the jury upon the subject of the appellant's want of knowledge that the motion under discussion is founded. The transaction took place in the dark. The personal attributes of Adair as denoting youth were unknown to the appellant. He delivered the whiskey to a stranger without knowledge of his age or appearance, and without an effort, by inquiry, observation or otherwise, to ascertain whether the person receiving the whiskey bore the appearance of a youth or one of maturity. To excuse him, he must not only have been unaware of the youth of Adair, but there must be facts upon which the jury might determine that the appellant's ignorance of the age of the witness was not due to his failure to exercise proper care. In the light of the evidence, *Page 114 this court is not warranted in declaring that the learned trial judge committed an error in refusing to instruct the jury on the issue of mistake of fact for the reason, as above stated, that there is no cogent evidence from which the jury might have determined that the appellant used proper care to inform himself touching the age of the person with whom he was dealing.

    The motion for rehearing is overruled.

    Overruled.

Document Info

Docket Number: No. 10605.

Citation Numbers: 295 S.W. 925, 107 Tex. Crim. 110

Judges: MORROW, PRESIDING JUDGE. —

Filed Date: 4/27/1927

Precedential Status: Precedential

Modified Date: 1/13/2023