Bell v. State , 62 Tex. Crim. 242 ( 1911 )

My brethren affirmed the judgment holding the facts sufficient. From this I dissent. It is the rule that in statutory offenses the indictment must set out by proper averment every ingredient of the offense sought to be charged. This is now and has always been the rule without interruption in Texas, from Bush v. Republic, 1 Texas Rep., 455, and Burch v. Republic, in the same volume, page 608, to and inclusive of Keith v. State,58 Tex. Crim. 418; Snead v. State, 55 Tex.Crim. Rep., and Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 144. This is not only true, but the unbroken line of authorities lay down, affirm and enforce the further proposition that the Legislature is without authority to dispense with any necessary allegation in the indictment. These propositions I hardly think would be denied by any lawyer, nor do they need supporting authorities. However, I will call attention to a few of the cases: Hewitt v. State, 25 Tex. 722; State v. Wilburn,25 Tex. 738; Horan v. State, 25 Texas Sup., 271; Huntsman v. State, 12 Texas Crim. App., 619; Williams v. State, 12 Texas Crim. App., 395; Rodriguez v. State, 12 Texas Crim. App., 552; Brinster v. State, 12 Texas Crim. App., 612. There are so many of these cases that I think it unnecessary to further enumerate them.

It was expressly held in the Hewitt case, supra, that the Legislature could not dispense with necessary allegations setting out statutory offenses. That opinion was written by Judge Roberts. The Huntsman case reviewed at length the question, and reaffirmed the same principle. That opinion was written by Judge Hurt. I might say without fear of contradiction that the jurisprudence of this or any other country has not furnished the names of greater judges than Roberts and Hurt, and I had thought since the opinions in the Hewitt and Huntsman cases that the proposition therein asserted was finally and conclusively settled.

There is another settled rule in this State, as everywhere, so far as I am informed in criminal jurisprudence; that is, whatever is necessary to be proved must be alleged in the indictment. This is statutory in Texas. Code of Criminal Procedure, article 440. And for the purposes of this opinion I may say that this means the essential ingredients or elements of the offense for which the conviction is sought. I shall only cite a few authorities to sustain this proposition. 9 App., 567; 8 App., 127; 3 App., 605; 17 App., 185; 38 App., 124; 2 Bish. Proc., 3d ed., sec. 325.

It is equally as well settled where exceptions are set out in the enacting clause, these are elements of the offense, a part of its definition, and descriptive, and must, therefore, be averred in the indictment. Keith v. State, 58 Tex.Crim. Rep.; Snead v. State, 55 Tex.Crim. Rep.; Fleeks v. State,47 Tex. Crim. 327; Bice v. State, 37 Tex.Crim. Rep.; Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 144.

Our reports are filled with these cases, but these are thought sufficient in number to support the proposition without citing others.

There is another rule, to wit: Where the exceptions are not in the enacting clause, the above rule does not usually apply. With this latter proposition in any of its phases I do not purpose in this opinion to deal. It is not called for, because the exception in the statute under which this prosecution is had is in the exacting clause, and is a part of the definition of the offense and descriptive of it. Where these exceptions are in the enacting clause they have universally been held to be descriptive of the offense and form essential elements in its definition. Construing the statute under consideration, Judge Ramsey laid down this rule in the Keith case, supra, as did Judge McCord in the Sutphen case, supra, and the rule in those cases was held to directly apply to this statute. Both of those cases were reversed because the indictment did not negative the exceptions. In the Keith case Judge Ramsey referred to the Sneed case, supra. He also wrote the opinion in the Sneed case, and elaborately reviewed the question. I do not care to enter into a review of those cases. They speak for themselves. Judge McCord wrote also the Mizell case prior to writing the Sutphen case.

Again, it has been held, as before stated in this State, that exceptions found in the enacting clause of a penal statute must be negatived in the indictment charging the offense, for the very simple reason that such exceptions constitute a part of the description and definition of the offense, and unless negatived no offense is stated. State v. Smith, 24 Tex. 285; Hewitt v. State, 25 Tex. 722; Duke v. State, 42 Tex. 455 [42 Tex. 455]; State v. Clayton, 43 Tex. 410; Lewis v. State, 2 Texas Crim. App., 26; Owens v. State, 3 Texas Crim. App., 404; Summerlin v. State, 3 Texas Crim. App., 444; Blasdell v. State, 5 Texas Crim. App., 263; Leatherwood v. State, 6 Texas Crim. App., 244; Lewis v. State, 7 Texas Crim. App., 567; Brown v. State, 9 Texas Crim. App., 171; Zallner v. State, 15 Texas Crim. App., 23; Mosely v. State, 18 Texas Crim. App., 311; Colchell v. State, 23 Texas Crim. App., 584; Rice v. State, 37 Tex.Crim. Rep.; Rice v. State,37 Tex. Crim. 38; Edwards v. State, 37 Tex. Crim. 242; Dudley v. State, 37 Tex.Crim. Rep.; Salter v. State, 44 Tex.Crim. Rep.; Borders v. State, 66 S.W. Rep., 1103; Snead v. State, 55 Tex.Crim. Rep.; Keith v. State,58 Tex. Crim. 418; Sutphen v. State, 59 Tex. Crim. 500, 129 S.W. Rep., 144. While many other cases could be cited, I think these are sufficient to sustain the proposition stated, but will cite in addition to the above Byrd v. State,59 Tex. Crim. 513, 129 S.W. 620.

It is also well settled that the indictment must charge an offense, and admitting everything stated in the indictment to be true, that instrument does not set out the offense, then the accused can not be convicted. No offense is charged. This is axiomatic. Applying the above rules to the indictment in this case and under the statute which appellant was tried, there are four elements absolutely necessary to be averred and proved: First, that appellant was pursuing the occupation or engaging in the business of selling intoxicants; second, that this occurred in local option territory; third, that the accused must make at least two actual sales, and these must be pleaded specifically; fourth, that he was not authorized by law to pursue said occupation or engage in said business. And failure to aver and prove each of these and all of them would clearly entitle the accused to a verdict of not guilty under the authorities already cited. So it is beyond question that the definition, ingredients and elements of the offense must not only be averred in the indictment, but the State must prove them in order to secure a verdict. I deem it unnecessary to cite or discuss authorities to sustain the proposition that descriptive allegations must be also proved as alleged. A great number of cases are collated on page 20, subdivision 8 of White's Enlarged Penal Code.

I do not care here to discuss the sufficiency of the allegations in the indictment negativing the exceptions. I shall do this in the case of Slack v. State, now pending.

My brethren, as I understand their opinion, have reached the conclusion that it is incumbent on the accused to show or prove that he is permitted by law to pursue the occupation of selling intoxicants in local option territory. They base their decision on the statement that the accused assumes and is charged with the burden of proving the exemptions set out in the enacting clause, first, because it is a negative averment, and second, because the facts are peculiarly within his knowledge and possession. I can not agree to either proposition as being correct in law or in fact, and the second proposition is absolutely at variance with and disproved by all the statutes in regard to carrying on the business of selling intoxicants in local option territory in Texas. Under the first proposition — that is, the accused must prove his exemptions from punishment — there are several reasons why this can not be the true rule in this State: First, because the decisions above cited settle the question against the proposition. I do not care further to review those cases in this connection. Second, whatever is necessary to be alleged as part of the offense, and is an ingredient thereof, devolves upon the State the burden of proof. Third, the burden of proof never shifts to the accused. The State must prove its case to the exclusion of the presumption of innocence and reasonable doubt. Article 52, Penal Code. That article thus provides:

"On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission."

This article clearly provides, first, the State must prove thefacts constituting the offense; second, until the State hasproved such facts it does not devolve upon the accused to establish any fact or circumstance "to excuse or justify the prohibited act or omission;" third, a conviction can not be had until the State does prove by facts that the accused has violated the statute under which he is prosecuted; fourth, the facts proved constituting the offense must be of sufficient cogency to overcome the presumption of innocence and the reasonable doubt; fifth, the accused is not required to prove any fact or introduce any evidence in aid of the State's case; sixth, the burden of proof does not shift from the State to the defendant. It is, therefore, a legal sequence that the State must prove by facts that the accused is guilty under the statute, the terms of which he is charged with violating. Whatever is necessary to allege and bring him within the inhibition of the statute is necessary to beproved, and this by facts. The fact that appellant may have sold intoxicants is not sufficient. It is necessary that he sells in some manner inhibited. He can not be guilty of violating the lawgenerally. He must be charged with a specific offense, and such offense must be denounced by a statute. The allegation of the indictment must be as specific as are the terms of the statute, and the allegations must be plainly met by proof of facts with sufficient cogency to overcome the presumption of innocence and reasonable doubt. If an exemption is set forth in the definition of the offense, the State must show that the accused is not within that exemption. Until he is proved not to be within the exemption he is entitled to an acquittal. He is not called upon to prove that he is within the exemption, for this would be requiring of him to prove his innocence.

The second proposition asserted and relied on by my brethren is this: When facts are peculiarly within the knowledge of the accused it devolves upon him to introduce the same. And they further hold that under this statute under which appellant is indicted and convicted the facts are peculiarly within his knowledge. The rule asserted by my brethren obtains in some instances and under some statutes, or at least may obtain, but not so under the statute under discussion. I assert, without fear of contradiction, that it is not correct to say that the exemptions or exceptions contained in the statute under consideration are peculiarly within the knowledge of the defendant, and can not be. It is true, if he has taken out his license and paid the taxes to pursue the business, that he had knowledge of the fact that he did so. So it would be if be had stolen a horse or committed any other crime, but in neither instance would he be required to give evidence against himself simply because he had knowledge of it, nor would he be guilty if he failed to give such information. The Constitution protects him wherein it says: "The accused shall not be compelled to give evidence against himself." I had thought that "the party whose contention requires proof of a negative fact has the `burden of evidence' to prove that fact." I had always thought, and so ascertained from the law, that where a negative fact or exception or exemption is in the enacting clause, it formed a part of the definition of the offense, and the "burden of proof" was and is on the prosecution to exclude the accused from the operation of such exception, otherwise no offense would or could be shown to have been committed. Sufficient number of authorities have been cited without addition of others. "Especially is this true when the allegation is of an omission by defendant of some duty imposed by law or a criminal neglect of duty or is a substantive part of a criminal charge." 2d vol. Ency. of Ev., p. 806, and notes for collated cases.

This is and has always been the rule in Texas. Cases, supra. In order to convict appellant, it is all sufficiently plain it must be shown that the local option law is in force; that he followed the business of selling intoxicating liquors in that territory, and did make the required number of sales, and all this without legal authority, and the burden is on the State to show all these facts. But although the negation or exception is a part of the definition of said offense, my brethren hold that the accused must show that he was authorized to sell. This shifts the burden of proof to him to show that he had authority to pursue the business of selling intoxicating liquors, and entirely destroys the presumption of innocence. A failure of proof as to either of the first three mentioned provisions of the statute would defeat the State's case. This I understand to be conceded in and by the majority opinion. In fact, the State would have no case unless it proved all three of those propositions, but under the view entertained by my brethren a refusal of appellant to prove authority to sell or a failure on his part to do so not only authorizes but demands his conviction. Are the facts that he is permitted to legally carry on the business peculiarly within the knowledge of the accused? Is it true that it is peculiarly known to him that he has complied with the law in paying his occupation tax, giving bond, securing license, and generally complying with the statutes authorizing the pursuing of the business of selling intoxicants in local option territory? If so, why and by what provision, of law? Article 407a of the Penal Code provides that if the party has a United States revenue liquor license, the presumption will obtain that he is pursuing that occupation or engaging in that business. That article applies to local option territory by the terms of the statute, but there was no evidence of this character introduced on the trial. Therefore there is no presumption arising for this reason, and none to be indulged. That statute authorizes the legal presumption resulting from the fact that the party having such license is pursuing the business. Under article 407a the State must show the accused has the license therein specified in order to secure the benefit of the presumption contained in the statute. The terms of that statute do not go further than to provide a prima facie case of pursuing the business named. It does not authorize finding the further fact that the accused did in fact sell intoxicants. The State is not relieved of the burden of proving the sales under that statute. The fact that the accused has such license from the United States government is much more peculiarly within his knowledge than is the fact that he has the legal right to sell in local option territory under State authority. There are several reasons why this is true, both as a matter of law as well as of fact. Among other reasons easily discernable are, first, the publicity required by the terms of the State statute in regard to pursuing this business; second, making all the steps taken by the seller requisite to such selling matters of public record in the offices of the clerks of the County and District Courts (White's Enlarged P.C., arts. 403, 404, et seq.); third, requiring all of these matters to be kept such as records and archives of said offices, for the inspection of the grand jury, district, county and justice precinct officers, and requiring the grand jury and the prosecuting officers to investigate these matters to the end that violators of the law may be prosecuted (White's Enlarged P.C., arts. 411g, 411h); fifth, because the duty is enjoined upon such officers to prosecute violators under the provisions of said laws (statutes above cited). An inspection of the provisions of these statutes with reference to selling intoxicants as an occupation or business in a local option territory will demonstrate the facts stated in the statute are not peculiarly within the knowledge of the accused, and can not be, and the further fact is clearly shown that the statute intended specifically that they should not be peculiarly within his knowledge. The statute, among other things, was enacted for the purpose of preventing this very result, and to place these facts of record where the officers should have full knowledge of them and by the terms of the statute are required to take cognizance. All of these matters are public records and are papers in the offices of the county and district clerks. When the accused is prosecuted under the terms of this statute, the indictment or information must allege and prove that he did not follow the provisions of the statute. Snead v. State, 55 Tex. Crim. 583, and cases therein cited and discussed. That case was followed by Keith v. State, 58 Tex.Crim. Rep., and Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 144.

The Act of 1897 sets out the necessary steps to be taken where parties desire to sell intoxicants in local option territory. Under the provisions of that act there is levied and collectible a tax from every person, firm or corporation, or association of persons, desiring to engage in selling intoxicants in local option territory. Before engaging in the business the party must file with the county clerk an application under oath on a form furnished by the comptroller, and in it shall designate the place where he purposes selling, and if in a town or city he must give the street and number of house, and he must also state whether the intoxicants to be sold are malt or other kind of intoxicants. He must also pay the collector of taxes the full amount of annual taxes levied by the statute, and where the sales are to occur in a city or town, the party shall in addition pay the required taxes to the collector of taxes of such city or town. In addition to all this, the statute requires a bond in the sum of $2,500 with ample surety, with stipulations and conditions as onerous as the acutely strenuous mind of the legislative body could devise. Among other things, that bond provides for heavy penalties for any and every infraction of its terms, and in certain contingencies its forfeiture and cancellation, and that a new bond be given. This bond is to be filed in the office of the county clerk of the county where the business is carried on "and recorded by him in a book" to be kept by him for that purpose. The prescriptions used as a basis for sales are to be canceled and kept by the party selling, and every month filed with the clerk of the District Court, accompanied by an affidavit stating that the seller has sold no intoxicants other than those named in the prescriptions filed. These prescriptions are required to be kept by said clerk for three years from the date of filing for the inspection of the grand jury, district, county and precinct officers. White's Enlarged Penal Code, article 403.

I deem it unnecessary to enumerate further the statutory requirements making every step and action of the party selling as a business a part of the public records and archives of the different named offices. They are by the statute made public records of the different offices and subject to inspection and investigation by the officers and the grand jury. Not only so, but the district judge must specifically charge the grand jury in regard to these matters. Rev. Civil Stats., article 3399. It is self-evident, therefore, that these matters are not, and in fact can not be, peculiarly within the knowledge of the accused, and it is equally as evident that all officers called legally to act in regard to these matters are required to have complete knowledge of these facts, and it is made their duty to prosecute for violations of the statute. There are to be found statutes perhaps fixing or regulating the manner of introducing evidence, and there may be provisions in some of them providing how this may be introduced, but that question does not and can not arise under the statute in question. There is no rule that has been called to my attention which provides that the accused party alone is the custodian of facts that are made public archives or records. Nor have I been cited to a rule that would hold such knowledge peculiarly within the keeping of the accused. Nor is it readily comprehended how he should be any better informed of the public records than can be the specified officers. They are specially and specifically made records for the use of the grand jury, and the district and county and precinct officers, to the end that the law may be enforced. They are records like other records of their kind and class, and are accessible as well to the State as to the defendant. The provisions of these statutes absolutely disproves the conclusions in the majority opinion. I have not mentioned, and deem it unnecessary to discuss, cases like sales to minors, as they are not applicable to the question here involved. They were decided upon a different rule.

I might pursue this line of thought indefinitely, but I have written more than I intended. Suffice it to say, in closing this phase of this dissent, that if it is the correct proposition that accused persons are to be convicted because they have knowledge of things of which the prosecution is either ignorant or uninformed, and these accused persons decline to give information of their knowledge to the State, then every party accused of crime can be convicted, because of the fact that be has knowledge of his legal sins or omissions. If it is proper and legal to convict because the accused does not reveal his crime, our laws have been operating on very erroneous lines in the history of our race and our jurisprudence. The Constitution provides the accused shall not be compelled to give evidence against himself, but under the majority opinion, if he does not do so, he will be presumed to be guilty, and must therefore be convicted. This court at all times reverses judgments of conviction if an allusion is made on the trial of the case to the fact that the accused failed to testify, but my brethren in effect now hold that if he does not testify, or give the State the benefit of his knowledge of facts that are held to be in his possession, he will be adjudged guilty of the crime charged for that reason. Not only is the burden shifted by this rule to the accused, but guilt is made certain if he fails to produce evidence that is within his knowledge. This eliminates the presumption of innocence, and changes the burden of proof, and mere silence or failure to produce evidence is by that course of reasoning made to overcome this presumption of innocence and reasonable doubt. Here an absurdity is found in the fact of affirming the judgment against the accused if he fails to testify or produce evidence of exculpatory facts, but if such failure to testify should be alluded to in the argument the judgment for that reason will be reversed. The judgment will, therefore, be affirmed upon appellant's failure to produce evidence, and be reversed if that fact is alluded to or discussed Judge Harlan, in Davis v. United States, 160 U.S. Rep., 469-487, uses this language: "The burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime."

In 17 Mich. 9, Judge Cooley said: "There is no such thing in the law as a separation of the ingredients of the offense so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosophical and at war with fundamental principles of criminal law."

These opinions emanated from two of the greatest jurists who ever graced the appellate courts of the United States, one the Supreme Court of Michigan, the other the Supreme Court of the United States. Both opinions enunciate undeniably legal and axiomatic truths. The principle announced by these two great jurists will be found surviving the wreck of panoramic legislation and revolutionary methods and policies. Legal evasions and technicalities have been and are being formulated to legalize enactments that ought to be held unconstitutional and illegal, and for the purpose of securing punishments in violation of correct principles, and overruling constitutional inhibitions. A review of the strenuous and far-reaching rulings and policies of the present time threatening our legal fabric, and invented or called into play to uphold more than doubtful legislation and even unconstitutional enactments, might prove at least fully entertaining if time permitted, and would reveal a most far-reaching tendency to break away from time-honored and recognized principles of law. The further fact would be as easily discovered, that if the old, worn-out, popular theory that technicalities were invented for the purpose and use to relieve from punishment those charged with crime, that these technicalities have been diverted from their popular acceptation and transferred to the office, and to fill the mission of upholding legislation which is subversive of the principles of correct jurisprudence, and to overturn constitutional guarantees. They are made to suit and foster the desire to create and multiply offenses such as the heretofore fairness, justice and manhood of our people never regarded as being within the domain of criminality. Contempt proceedings are resorted to to supplant the jury trial; rules are entered against parties compelling them to show cause why they should not be held in contempt of court for supposed or real penal offenses, and this proceeding is made to supersede indictments and trial by jury. By this means double punishment in the face of the constitutional inhibition is prescribed and enforced. Under this legislative provision a party may be convicted for an offense and punished, and the court is authorized to inflict another punishment for the same offense under contempt proceedings. The burden of proof is shifted from the State to the accused, and he is required to furnish evidence to prove his innocence. Silence before the jury is to be taken as evidence of guilt, and the accused is made peculiarly the repository of the knowledge of the contents of public records which may affect his guilt or innocence before the jury, and if he does not impart such information or knowledge to the jury, or the State, he is to be branded and convicted as a felon, and by this means deprived of all legal rights without due process of law.

I have in this opinion given some of the reasons why I should and do dissent.