Savage v. State , 50 Tex. Crim. 199 ( 1905 )

I did not agree to the original opinion, as shown by my dissent; nor do I agree to anything in the opinion on rehearing, except the conclusion reached. In illustrating the effect of the original opinion upon the local option law, I stated, that if appellant could give away whisky or lager beer, under the subterfuge resorted to in this case, then it would destroy the local option law. At least this is the substance of what I stated. Predicated upon that statement in my dissent, I find the opinion of the majority on motion for rehearing contains this very sage suggestion: "We presume that no one knows better than our Brother Brooks that on this record the sale of intoxicating liquor could not be maintained, inasmuch as nowhere is it shown that the beer alleged to have been sold was an intoxicant, and this court holds such proof must be made before the conviction can be had." It is quite charitable for the majority to presume that I know this decision, since I participated in its rendition. I did not apprehend any one would be so obtuse as to place such construction upon my dissent as to infer that I did not know it. I ascertain that the State would have had no trouble, if the issue had been joined, to have proven that the beer sold was lager beer and an intoxicant.

The opinion on rehearing seems to be predicated in part upon a postulate of the Assistant Attorney-General, made "lawyer-like," which the writer hereof understands to be an axiomatic statement of the law of sales laid down in all the books. But the majority opinion, in addition to the Assistant Attorney-General's postulate, cites two decisions of courts of last resort rendered about the year 1845, and then states, "That these cases are very much in point, and had they been called to our attention originally, we undoubtedly would have held that the transaction narrated by the witnesses in dispensing the beer amounted to a sale, and under proper instructions the jury would be authorized to so find." It is certainly fortunate for the laws of this State, that the Assistant Attorney-General found these two antique decisions, which very aptly announce a principle of the law of sales that is as old as the law itself. But since the majority seem to base their conclusion upon the postulate of the Assistant Attorney-General, and the two decisions cited, I have no cause to disagree with the conclusion they reach.

I also note that the majority hold that a restaurant or hotel keeper is not authorized in this State to furnish malt liquor or wines with meals to his guests. I concur in this conclusion. As stated, in my dissenting opinion, a restaurant is what the word imports — a place where viands are sold, and not where intoxicants are disposed of. This being true, it follows as night the day, that the restaurant keeper cannot sell whisky or beer — being intoxicants — unless he has a license to do so, nor can he sell it on Sunday. This has been the law ever since this was a government, and so understanding it, I concur in the conclusion reached.