Johnson v. State , 75 Tex. Crim. 177 ( 1914 )

I can not agree with the result reached in this case. Judge Harper holds that the facts show a sale, and therefore punishable under the charge of carrying intoxicants into local option territory. Presiding Judge Prendergast holds the facts do not show a sale but only an agency on part of appellant, and nothing else. I agree with Judge Prendergast on this phase of his concurring opinion. Appellant was charged with violating what is known as the Allison bill, the allegation being that he transported, carried and delivered to Griffin whisky in local option territory. The State's case, therefore, must rest upon these allegations. Griffin gave appellant two dollars with which to buy him two bottles of whisky, and fifty-five cents to pay or assist in paying his railroad fare to Belton or Temple and return. Appellant bought the whisky in one of the towns mentioned for Griffin with Griffin's, money. This constituted him the agent or Griffin. I do not see how, by any possible construction of this testimony, it could be correct to hold that appellant sold Griffin the whisky. If it was a sale appellant violated the local option law in Lampasas County, but he was not charged with this offense, and the facts do not support it. The authorities sustaining my views of it are found collated in Mr. Branch's work on Criminal Law, section 569. Quoting from that work: "If defendant is in no way interested on behalf of the seller, but is simply acting as agent of prosecutor, he is not guilty of making a sale." Key v. State, 37 Tex.Crim. Rep.; Reed v. State, 44 S.W. Rep., 1093; Crawford v. State, 76 S.W. Rep., 576; Blasingame v. State, 47 Tex.Crim. Rep.; Rector v. State, 90 S.W. Rep., 41; Short v. State, 49 Tex.Crim. Rep.; Bowman v. State, 35 S.W. Rep., 382; Brignon v. State, 37 Tex. Crim. 71; Kirby v. State, 46 Tex.Crim. Rep.; Way v. State,36 Tex. Crim. 40; Gaston v. State, 102 S.W. Rep., 116; Hood v. State, 35 Tex.Crim. Rep.; Crawford v. State, 58 S.W. Rep., 1006; Johnson v. State, 44 S.W. Rep., 834; Phillips v. State, 40 S.W. Rep., 270. It was also held if there is evidence that the accused bought liquor from another as agent of the purchaser, and that he was in no way interested on behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Tex.Crim. Rep.; Treue v. State, 44 S.W. Rep., 829; Strickland v. State, 47 S.W. Rep., 720; Driver v. State, 48 Tex.Crim. Rep.; Golightly v. State,49 Tex. Crim. 44; Evans v. State, 55 Tex.Crim. Rep.; Wright v. State,35 Tex. Crim. 581. These authorities settle the question that this was and could not constitute a sale. If any illegality existed or could possibly arise under the facts of this case, it was that appellant bought whisky in Temple or Belton for Griffin and carried it to him at Lampasas, and was, therefore, acting as his agent. If he violated any law it is that clause of the Allison bill which prohibits transporting, carrying and delivering whisky in local option territory. Judge Prendergast holds this part of the Allison bill valid. With this view I can not concur. Some of our courts have gone far enough to say that the citizen may be punished for storing intoxicants in local option territory for illegal selling purposes, and this seems to rest upon the theory that this can be prevented because of anticipated sales to occur in the future. That question does not arise in this case, because the evidence is conclusive that the whisky belonged to Griffin and was carried by his agent, appellant, to him in Lampasas County. So we have this question: Can a citizen be punished by confinement in the penitentiary for carrying whisky into local option territory with no possibility of violating the local option law? The Allison law is dependent for its existence on the local option law. When the local option law passes out that dies for want of something to keep it alive. With whatever far-reaching power and authority the Legislature may be clothed, under the Constitution of Texas, article 16, section 20, that power is circumscribed to prohibiting selling in local option territory. There is no question, I would suppose, at this late day in Texas that this law does not authorize the punishment of the citizen for giving away whisky and can not legally — the Allison bill to the contrary notwithstanding. Under all the authorities it has been held that the giving of intoxicants in local option territory could not constitute a violation of that law. This has been held even as to giving it to minors. If the party gave to minors he would have to be punished for violation of the local option law. Atkinson v. State,46 Tex. Crim. 229; Tracy v. State, 48 Tex.Crim. Rep.; Tompkins v. State, 49 Tex.Crim. Rep.. This court has held the Legislature had no authority to authorize an election to determine whether the gift of intoxicating liquors shall be prohibited, — whether the gift was with intent to evade the law or not. Holly v. State, 14 Texas Crim. App., 505; Bottoms v. State, 73 S.W. Rep., 16; Steele v. State, 19 Texas Crim. App., 425. It was also held in Stallworth v. State, 16 Texas Crim. App., 345, that an indictment for ordinary local option violation which charges a gift charges no offense. For many cases deciding this particular phase of the law see Branch's Criminal Law, section 567. As I understand the law, viewed in the light of the constitutional guaranty and wording of section 20, article 16, the Legislature can not prohibit the citizenship of this State from conveying to his friend or giving to his friend or to his principal as his agent intoxicating liquors in local option territory so long as he does not violate some of the inhibitions with reference to sales or illegal matters of that character. An accused does not have to prove his innocence; the State must prove guilt to secure a conviction. In other words, the Legislature can not make it a felony and incarcerate our citizenship in the penitentiary even in local option territory where one friend gives to another intoxicants, or where one citizen gives to another citizen intoxicants or buys it as agent of the principal; and I understand the law to be further that the Legislature can not abrogate or abolish the law of principal and agent; that the Legislature is powerless to abolish the law and doctrine of agency. If appellant was guilty, I do not understand why Griffin was not, on the theory of agency. Griffin could be an accomplice on that theory. This certainly would pass even the limit of the power of the Legislature. The principal may do through his agent what he himself may do. The Allison law authorizes the principal to carry the whisky into local option territory for his own use. I therefore agree with Judge Prendergast that appellant was only the agent of Griffin, but disagree with him as to his conclusion of the validity of the Allison bill on this question, and disagree with Judge Harper that the facts constituted a sale by appellant to Griffin.

With due deference to the opinion of my brethren I respectfully enter this dissent.