Pitner v. State , 37 Tex. Crim. 268 ( 1897 )

Appellant was convicted of violating the local option law in a subdivision of said county, and his punishment assessed at a fine of $25 and twenty days' imprisonment in the county jail; hence this appeal. While the court ought to have quashed the second count in the indictment, yet the failure to do so was not error. The first count was good as charging a sale, and the conviction will be referred to that count. Appellant also excepted to the indictment because it alleged a violation of the local option law in a subdivision; and he insists that no punishment is affixed to the act with reference to subdivisions, and that for the punishment no reference can be had from the Act of 1893 to preceding acts for punishment, before any such subdivisions were authorized. The contention has been settled by this court adversely to the appellant. See, Ex parte Segars, 32 Tex. Crim. 553, followed in Jordan v. State (No. 1124 on rehearing; decided at the present term) ante p. 222. However, appellant contends that that Segar's case, supra, has no application, and did not decide the point which he raises. His contention is "that inasmuch as the Act of 1887 was the law of the land when the Act of March 29, 1863, was passed, and as the former law only provides penalties for violating the local option law in counties, justice precincts, cities, and towns, the legislature, in enacting the latter law, providing for local option elections in subdivisions of counties other than justice precincts, cities, and towns, should have amended the former so as to make the same embrace such new kind of subdivision, and the failure to so amend the Penal Code renders so much of the Act of 1893 as provides for such elections in such new kind of subdivisions nugatory." To condense the position of appellant, he contends that nowhere in the Penal Code is a punishment affixed for selling intoxicating liquors in a subdivision of a county, other than the county, justice precinct, city, or town, and that, if the Penal Code had named a subdivision, then there would have been a punishment, but as it affixed the punishment for violating the law in the county, precinct, city, or town, therefore there is no punishment affixed for violating the law in these recent subdivisions. The Act of 1893 provides for these subdivisions, and reads: "When any such election has been held and has resulted in favor of prohibition, and the aforesaid court has made the order declaring the result and the order of prohibition, and has caused the same to be published as aforesaid, any person who shall thereafter within the prescribed bounds or prohibition, sell, exchange or give away for the purpose of evading the provisions of this statute, any intoxicating liquors whatsoever, or in any way violates any of the provisions of this statute, shall be subject to prosecution by information or indictment, and shall be punished as prescribed in the Penal Code." Acts 1893, p. 50, amending Sayles' Civ. Stat., Art. 3239. Now, we would not presume from this that you could inflict a punishment for murder, theft, embezzlement, or robbery, upon a person for violating the local option law in a subdivision; but we infer that when it says, "shall be punished as prescribed in the Penal Code," that it inevitably and unquestionably refers to the punishment affixed by the Penal Code for violating the local option law — the same punishment as is prescribed for violating the same in a county, justice precinct, city, or town. We concede, to the fullest extent, that no person shall be punished for any act or omission unless the same is made a penal offense, and the penalty affixed thereto, by the written law of this State. There is no question about the sale of intoxicating liquors in subdivisions being a penal offense. The only question is whether there has been affixed thereto a penalty by the written law of this State. The Act of 1893, just cited, refers unquestionably to a written law of this State which affixes the penalty to this offense. Appellant objected to the introduction of the order of the Commissioners' Court, dated November 17, 1894, ordering the election, on the following grounds: Because it appeared from the order that the election was ordered for a subdivision of Shackelford County less than a justice precinct, and did not contain an incorporated city or town, and that the petition therefor was not recorded in the minutes of the court, as required by law, at the time said order was made, and was not recorded until after the election and the petition for the election. The petition is required to be recorded in the minutes of the Commissioners' Court, but the time for this record is not designated in the act; and, moreover, while the bill itself raises this objection, there is no certificate of the judge showing the time when said petition was recorded. In the absence of such certificate, we would presume that it was duly and properly recorded. The metes and bounds are sufficiently set out in the petition. What we have above said disposes of appellant's third, fourth and fifth bills of exceptions. Appellant presented a number of bills of exceptions to the testimony of witnesses introduced by the State with reference to other sales than that charged in the indictment. This evidence was admitted for the purpose of showing the course of business of appellant with reference to the sale of liquor, and as having a bearing on the question as to whether or not he made the sale of the liquor as charged in the indictment. The sale of said liquor was the question at issue. The defendant denied a sale, and the State insisted that there was a sale as charged. The court, in this connection, gave a charge on circumstantial evidence, and we believe that all testimony tending to show that the transaction charged was a sale in accordance with the system pursued by the appellant was admissible; and the court, in its charge, limited the purpose of this testimony. In this there was no error. We would further remark, as to a number of these bills, that they do not show what the testimony was. They merely show an objection to the questions asked. Consequently they cannot be regarded as raising the question, but we have treated the matter as if the question had been properly raised. We believe the testimony with regard to the procurement by appellant of a United States internal revenue license was properly admitted as a circumstance tending to show that defendant was engaged in the sale of intoxicating liquors. The charge of the court as to the matters complained about by appellant we deem correct, and we further hold that there was no occasion to give certain special charges asked by appellant. There was no error in the refusal of the court to give the same. We have carefully examined the record in this case, and in our opinion there is no question as to the appellant's guilt. The proof shows that he was regularly engaged in the business of violating the local option law in that precinct, and the verdict of the jury, in assessing against him the lowest punishment for said offense, was certainly such as he cannot complain of in this case. The judgment is affirmed.

Affirmed.