Moreno v. State , 64 Tex. Crim. 660 ( 1911 )

Affirming the judgment for a violation of the local option law my brethren held that the mere fact that the liquid purchased was "beer," judicially informs them that said "beer" was an intoxicant and, therefore, the evidence sustains the conviction. I have heretofore understood the law to be otherwise when the evidence showed that the intoxicating liquor alleged to be sold in violation of the local option, or prohibition law was a malt liquor, or even when the witnesses called it "beer" or "lager beer." The Constitution, Article 16, Section 20, only prohibits the sale of "intoxicating liquors" where the voters have put the local option law into operation. The statutes enacted in obedience to this constitutional provision so declare and this expressly. I have also been led to believe under all the decisions in this State that when the Constitution expressly declares how a thing may be done, or places a limitation upon the authority of the departments of government that such provisions control and can not be annulled, set aside, modified or changed by the legislative department or the judiciary. It has been held by the unbroken line of decisions in this State that in a violation of the local option statutes the liquid sold must be an "intoxicant," and this is so by express provision of the statute. In determining the criterion of what it takes to constitute such intoxicant the rule is thus declared: "Any liquor intended for use as a beverage, or capable of being so used which contains alcohol, either obtained by fermentation or by the additional process of distillation in such a proportion that it will produce intoxication when taken in such quantities as may practically be drunk is an intoxicant." This quotation is found in Decker v. State, 39 Texas Crim. Rep. p. 20, opinion by Judge Hurt, then Presiding Judge of this Court. The quotation was from Mr. Black on Intoxicating Liquors. This case has been followed as correct and declared to be the law in all cases since its decision and by all the courts of this State. Ex parte Gray, 83 S.W. Rep., 829; Pike v. State, 40 Tex.Crim. Rep.; Mason v. State, 56 Tex.Crim. Rep.; Scales v. State, 47 Tex. Crim. 294; Murray v. State, 46 Texas Crim., 128; Greiner-Kelley Drug Company v. Truett, 75 S.W. Rep., 537. The latter case, supra, was approved in the case of State v. Gillispie in 63 W. Va. 152 . For a further collation of authorities see Mr. Branch's Criminal Law of Texas, sections 555 and 557, where many cases are enumerated. Under this line of authorities it has heretofore been thought by the bench and bar of this State, as the declared law, that it is a matter of evidence whether "malt liquors" is or is not an "intoxicant" in local option territory, and it has also been understood by courts and attorneys that neither the Legislature nor any department of government could declare a thing to be something that in fact it was not. It would be rather difficult to conceive how the Legislature could declare that alcohol or whisky would not and could not be intoxicating liquor. It would be equally as difficult to understand how that body could declare legally that any liquid would intoxicate when it would be an utter impossibility in fact for such liquid to have such effect. Neither the Legislature nor courts have authority to declare falsehood to be the truth, or the truth to be falsehood. It would be an absurdity to say that the Legislature could abolish the law of cause and effect. It would scarcely be necessary, I think, to cite authorities in support of the proposition that the Legislature is powerless to convert water into wine; or that this court could judicially declare that body has such omnipotence. It has not been heretofore determined that the mere fermentation of liquids could form the basic principle of governmental authority by which the citizenship of the State should be rendered infamous for the sale of the Old Plantation "potato beer" or, therefore, the Old Black Mammy of our Southland should be incarcerated in the penitentiary for manufacturing and selling her brew of "persimmon beer." A wise man, once upon a time said "because the preacher was wise he still taught the people knowledge; yea, gave good heed and sought out and set in order many proverbs." Ecclesiastes Chap. 12, verse 9. The wise preacher again recorded that he "gave his heart to seek and search out by wisdom concerning all things that are done under the heavens." and reached the conclusion that "the thing that hath been, it is that which shall be; and that which is done is that which shall be done; and there is no new thing under the sun." Same, Chap. 1, verse 9. This solemn declaration may have been considered the enunciation of concrete truth when written by "the Preacher the son of David, King in Jerusalem" but he did not forecast that the "time will come when they will not endure sound doctrine, but after their own lusts shall they heap to themselves teachers having itching ears; and they shall turn away their ears from the truth, and shall be turned unto fables." 2 Tim., Chap. 4, verses 3 and 4. Nor did the wisdom of Solomon comprehend that after many centuries that knowledge would so increase and wisdom so augment itself that old things would pass away and all things would become new "under the sun." It may be that the prestige of the royal "preacher" will become a reminisence only to be remembered as in Sunday school lore. The Savior, while upon Earth, by His first miracle at Cana of Gallilee, converted water into wine, but it is left for the latter day miracle working power to convert all fermented liquids into intoxicating beverages.

My brethren seem to have lost sight of or ignored the distinction between a statute which regulates the sale of liquor and one which prohibits such sale. Under statutes regulating the sale and imposing a tax upon the sale, it is not necessary to prove the intoxicating properties, if the statute so provides, but if the statute does not so provide, but limits the regulation to intoxicants, then in order to secure a conviction for a violation of the law it must be shown that the liquid sold was an intoxicant. Stoner v. State, 63 S.E. Rep., 602; Eaves v. State,113 Ga. 749. Such also is the rule in many of the other states, where the statute is one of prohibition of the sale of intoxicants altogether, as our local option law, then in order to secure a conviction the evidence must show the liquid sold to be an intoxicant. It will be noted that in Texas this distinction is kept plainly in view in the definition of intoxicants and the distinction between regulation and prohibition is also legislative and a broad distinction is kept up in this State between intoxicating and nonintoxicating malt liquors. The Act of 1909, popularly known as the Robertson-Fitzhugh Act defines intoxicants as follows: "Section 34. The term `intoxicating liquor,' as used in this Act, shall be construed to mean fermented, vinous or spirituous liquors or any composition of which fermented, vinous or spirituous liquors is a part; and all of the provisions of this Act shall be liberally construed as remedial in character." My brethren have taken this as authority for holding that they could judicially know that "beer" would be an intoxicant in local option territory where a conviction was sought for violating the provisions of the local option law. It will be noted in this connection that this Act of the Legislature expressly has no reference to, nor is it sought to be made effective in local option territory. On the contrary the provisions of this bill have been expressly excluded from operating in local option territory as is evidenced by section one of the bill which provides: "Hereafter there shall be collected from every person, firm, or association of persons selling spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, in this State, notlocated in any county or subdivision of a county, justiceprecinct, city or town where local option is in force under thelaws of Texas, an annual tax of three hundred and seventy-five ($375) dollars, etc." Again, section 9j of the same Act provides that at least one permit shall be issued in any city, town or justice precinct where local option is not in effect. Again, the local option law is excluded in section 14, as it is in section 18. Section 27 of said Act thus provides: "This Act, or any of the provisions thereof, shall not be construed to be in conflict with any local option law now or hereafter to be in force in this State, and no license to any retail liquor or retail malt dealer shall be issued or shall be effective at any place where local option law is in force and operation." Then by the express provision of this Act is it excluded from operation in local option territory. It has been held in all the decisions from Robertson's case in the 5 Texas Crim. App., 155, until this decision, that where the local option laws are made operative in a given territory it excludes all other manner or means of selling intoxicants and it is expressly held that in such territory intoxicants can only be sold in obedience to the provisions of said local option law.

That I may not misstate my brethren on their position I make this quotation from the opinion on rehearing: "However, we will frankly say that although the decision of this court on that question did not appeal to our judgment, we might have followed them as we have done in other instances had not the Legislature provided by section 34 of Chapter 17 of the Act of Thirty-First Legislature: `The term intoxicating liquor as used in this Act shall be construed to mean fermented, vinous, or spirituous liquors or any composition of which fermented, vinous or spirituous liquors is a part.' Every one knows that beer is a fermented liquor, and is a composition containing spirituous liquor as well as being a fermented liquor. If a person in a precinct where prohibition is not in force sells beer, and is prosecuted for selling beer without having obtained a license to do so, by force of this statute this court must take judicial knowledge that beer is an intoxicating liquor. If in another precinct in the same county, where prohibition is in force a person sells `beer,' appellant insists this court must hold it does not judicially know anything about it. Such position would be an absurdity, and as the great weight of authority hold that the courts judicially know that beer is an intoxicant, in accordance with these decisions and as the above statute requires this court to take notice of its intoxicating quality in nonlocal option territory, we held and still hold that the members of this court are not the only persons in Texas who will continue in ignorance and in one class of cases hold that they do not know anything about beer and in another hold that they do. Personal knowledge we may not have, but judicial knowledge can be acquired by facts which one has learned through former litigation (Hatch v. State, 11 Tex. 708 [11 Tex. 708]), and if there is any one question on which this court ought to have information by reason of litigation thereon, it is what is and what is not an intoxicating liquor." I have copied the above that I may be understood in what I may have to say in regard to this phase of the opinion. As before stated, my brethren do not seem to keep in mind the distinction between statutes regulating the sale of malt liquors where such statutes declare all malt liquors, as this does, to be intoxicants and those statutes which prohibit only intoxicating liquors. This court, as the other courts of Texas have, has always held that where the intoxicant is shown to be whisky the court will take judicial knowledge of the fact that it is an intoxicant, but where it is a malt liquor the rule has been invariably laid down the other way pertaining to local option territory. Branch's Criminal Laws of Texas, Sec. 555 collates the authorities in support of this proposition. The statute requires liquor to be intoxicating under the local option law, therefore, the proof must show the liquor to be intoxicating. Davis v. State, 36 Tex.Crim. Rep.; Barnes v. State, 42 Tex.Crim. Rep., 44 S.W., Rep., 491; Faucett v. State, 46 Tex.Crim. Rep., 73 S.W. 807; Scales v. State, 47 Tex.Crim. Rep.; Ex parte Gray, 83 S.W. Rep., 829; Racer v. State, 73 S.W. Rep., 807; Schwulst v. State, 52 Texas Crim., 426; McDonald v. State, 49 S.W. 589; Beaty v. State, 53 Tex.Crim. Rep.. If the only proof is that the liquor was called "beer" or "lager beer," it is insufficient to show that it was intoxicating under that law. Harris v. State, 47 Tex.Crim. Rep., 86 S.W. Rep., 763; Sullivan v. State, 48 Tex.Crim. Rep.; Cassens v. State, 48 Tex.Crim. Rep.; Potts v. State, 89 S.W. Rep., 836; Potts v. State, 50 Tex.Crim. Rep.; Schwulst v. State, 52 Tex.Crim. Rep.. It has been further held under that law that evidence that liquor was a malt liquor is not sufficient to show that it was an intoxicant. Barnes v. State, 42 Tex.Crim. Rep., 44 S.W. Rep., 492; Scales v. State, 47 Tex.Crim. Rep.; Uloth v. State, 48 Tex. Crim. 295. It is also held that an allegation that the liquor was "beer" is not sufficient of itself to charge that the liquor was an intoxicant. Harris v. State, 47 Tex.Crim. Rep., 86 S.W. Rep., 763. The same question was presented in the form of charges in the trial court and it has been held uniformly that a charge is error which assumes that "beer" or "lager beer" is intoxicating. Potts v. State, 50 Tex. Crim. 368. It has further been held that when the issue is raised as to the liquor being intoxicating, it is error to refuse a charge correctly defining intoxicating liquors. Mason v. State, 56 Tex.Crim. Rep.; Ross v. State, 52 Tex. Crim. 604; Malone v. State, 51 S.W. Rep., 381; Uloth v. State, 48 Tex.Crim. Rep.; Lee v. State, 55 Tex. Crim. 379; Hendrick v. State, 47 Tex.Crim. Rep.; Walker v. State, 50 Tex.Crim. Rep.. It has also been decided if the issue is raised as to whether the liquor was an intoxicant, it is error to refuse to charge the jury to acquit if they have a reasonable doubt that the liquor was intoxicating. Robinson v. State, 49 S.W. 386; Rutherford v. State, 48 Tex.Crim. Rep.; Mayne v. State,48 Tex. Crim. 93. A charge that any beverage containing alcohol is an intoxicant is error. Walker v. State,50 Tex. Crim. 495, 98 S.W. Rep., 265. It was also held error to charge the jury that intoxicating liquor is any liquor used as a beverage that has a sufficient quantity of alcohol to produce intoxication in any degree. Mason v. State, 56 Tex. Crim. 261; Murray v. State, 56 Tex.Crim. Rep.. A charge is held error which defines intoxicating liquor as a liquor used as a beverage for the purpose of becoming intoxicated. Decker v. State, 39 Tex.Crim. Rep.. The definition given by Mr. Black and quoted by Judge Hurt in the Decker case, supra, has been approved in subsequent decisions. See Malone v. State, 51 S.W. Rep., 381; Murray v. State, 56 Tex.Crim. Rep.. If these decisions lay down the correct rule in regard to the necessary proof as to what is an intoxicant and charges which are required to be given to legally submit this issue to the jury in local option case, then my brethren are clearly in error in holding that this court has judicial knowledge that "beer" is an intoxicant under the local option law. The same rule, as before stated, does not apply where whisky is the intoxicant sold and the charge submitting the issue as to whisky being the intoxicant is not required in such case. From this viewpoint, or from these points of views, the decision of my brethren is in the face of and contrary to every decision this court has ever rendered. These statutes have been enacted and reenacted by the Legislature, changed and modified, amended and enlarged with these decisions the well settled law, then the same rule of construction invoked by my brethren justifies the statement that such legislation was enacted with reference to local option law in view of the well settled jurisprudence enunciated by the court.

I desire to call attention here, and emphasize the statement, that my brethren have by this opinion held that the definition in the Fitzhugh-Roberson License Law applicable to and controls the sale of beer in local option territory, and they make their judicial knowledge, growing out of the fact that beer was sold, the basis of the affirmance of this judgment. The facts of the case show nothing except the bare statement that the purchaser bought a "bottle of beer" and that simply upon the statement of the seller to the purchaser. The contents of the bottle was not shown, nor was there any attempt to show that it was intoxicating liquor. The evidence simply shows that the purchaser asked for a "bottle of beer" and the statement is made that appellant sold him a "bottle of beer." There is perhaps another rule which I might invoke at this juncture, well known in criminal jurisprudence, that is, the extra-judicial confession of a party accused of crime does not prove the crime. You can not prove the corpus delicti by such confession. There must be evidence of the fact that an intoxicant was sold. The State's whole case was that the appellant stated that it was "beer" upon the inquiry of the purchaser to buy "beer." The purchaser does not say its was an intoxicant; the appellant did not confess that it was intoxicant. There must be some evidence of the fact that the liquid bought was an intoxicant. There is here no evidence, outside of the statement made that it was "beer" as might produce intoxication.

The judicial knowledge of the court, as stated by my brethren, seems under the late decision of this court in Ex parte Townsend to be in more than serious doubt. In that case a statute enacted by the same Legislature which enacted the Fitzhugh-Robertson bill was held to be constitutional and subject to violation. That law was passed by the same Legislature which passed the Fitzhugh-Robertson bill, but at an earlier day in the session. On page 51 of the Act of the Thirty-First Legislature will be found this Act: "There is hereby levied upon all firms, persons, associations of persons and corporations selling nonintoxicating malt liquors an annual State tax of two thousand ($2,000) dollars. Counties, incorporated cities and towns where such sales are made may each levy an annual tax of not exceeding one thousand ($1,000) dollars upon all such persons, firms or corporations; provided, that this Section shall not prevent the sale of such proprietary remedies as `malt extracts,' `malt medicine' and `malt and iron' manufactured and used exclusively as medicine and not as a beverage, when sold upon the prescription of a regular practicing physician; provided further that no more than one sale shall be made upon any one prescription." The applicant Townsend was arrested for violating this Act and this court granted an original writ of habeas corpus and heard the case. It was agreed in that hearing that the County of Orange, where the case arose, was not operating under the local option law, but it was operating under the Fitzhugh-Robertson Act. The facts further showed in the Townsend case that there were parties selling malt liquors in that county under the provision of the Fitzhugh-Robertson law and in the same town where relator was selling his nonintoxicating malt liquors. The only difference between the liquors Townsend was selling and that the others were selling, if any difference there was, was in the percentage of alcoholic body. The liquor sold by Townsend and this defendant was fermented or malt liquor. Under the Fitzhugh-Robertson Act the liquor that he was selling was an intoxicant under the definition contained in section 34 of that Act heretofore quoted in this dissent. Of this there is and was no question. Under the definition in the Fitzhugh-Robertson Act the malt liquor that Townsend was selling in Orange County was an intoxicant, because it was malt liquor and what is commonly known as Hiawatha; and, as my brethren say, they go to the decisions heretofore rendered to ascertain what Hiawatha is, I may invoke that rule and say it was "beer" containing less than two percent alcoholic body. Yet my brethren hold in the county where the Fitzhugh-Robertson law was operative that malt liquor was not within the definition of the Fitzhugh-Robertson Act and was not an intoxicant, but was a nonintoxicant under the other Act, though both were fermented or malt liquors. We have the paradoxical situation now of the Fitzhugh-Robertson law declaring such malt liquors intoxicating liquors in local option territory, and yet not intoxicating in territory where local option is not in vogue; and we have at the same time the nonintoxicating liquor law operative in nonlocal option territory and the Fitzhugh-Robertson law operative in local option territory. It will thus be seen that my brethren by strange and paradoxical construction have placed the Fitzhugh-Robertson law operative in local option territory and the nonintoxicating liquor statute operative in "wet" territory and in territory where only the Fitzhugh-Robertson Act can be made to operate. We have still another curious condition of things by reason of the decision in this and that in the Townsend case, supra, that is the Fitzhugh-Robertson definition of intoxicants applying in the County of Orange with a tax of $125.00 and at the same time the nonintoxicating liquor statute operative in the same territory — one defining all compositions of which fermented, vinous and spirituous liquors is a part to be an intoxicant and the other declaring a tax of four thousand ($4,000) dollars on nonintoxicating liquors which are excluded by the definition of intoxicants in the Fitzhugh-Robertson law. Under the Fitzhugh-Robertson law both are intoxicants. It has been heretofore thought to be an axiomatic truth that two bodies can not occupy the same space at the same time, and it has been thought to be equally axiomatic in law that two antagonistic laws on the same subject could not be operative at the same time in the same territory, but by this opinion and the Townsend case these two axiomatic truths have been found untrue. Solomon is a proven myth and his proverb that there is "nothing new under the sun" has been demonstrated to be a fallacy. But the world has been spinning down the grooves of change three thousand years since then, and knowledge has run to and fro in the earth and wisdom has increased.

For the reasons above indicated I most respectfully enter my dissent.