Dozier v. State , 62 Tex. Crim. 258 ( 1911 )

With reference to the proposition involved in the Fitch case I wrote a few views why I dissented in that case, and reached the conclusion that the statute with reference to pursuing the business of selling intoxicants in local option territory could not be made operative until after a vote of the people putting into operation the local option law. The majority of the court differed with me rather widely, and laid down the proposition generally stated, that the Legislature could make the law operative without reference to a vote of the people. That question is urged in this case.

It may be unnecessary to pursue that thought further. The profession will fully understand my views from the dissenting opinion in the Fitch case and Judge Ramsey's views in the Lewis case. I believed then, and believe yet, that Judge Ramsey's reasoning in the Lewis case is correct, and that it has not been answered in any manner by the reasoning in the Fitch case and subsequent cases. I would not mention that matter in this dissent but for the following statement found in the majority opinion, which is as follows:

"The contention is made that the people might not have voted in favor of the law if they had known the Legislature would pass laws to enforce it. We have not that opinion of our citizenship. As far as our observation goes, all good citizens want to see the law enforced while it is the law. They may disagree as to the wisdom of adopting the law, but all desire it respected and obeyed as long as it is the law, except the criminal who violates it. There is a mode by which all laws can be repealed, if not desired by the people affected thereby, but we can not agree that the Legislature is powerless to remedy evils as they arise. There is but one restraining power — the Constitution — and so long as it does not inhibit the Legislature from so doing, we do not think a construction of the court should do so."

I approve most heartily the last sentence quoted, but I differ with my brethren in the conclusion reached. The Constitution is the restraining power, and by virtue of article 16, section 20, is effectually restraining in this matter. It dominates the Legislature; it created that body. It dominates this court and circumscribes not only the power of the Legislature but of this court, as well as the executive department. I agree further, that as long as the Constitution does not inhibit legislation, the court should not undertake to put a limit upon the Legislature. But the difference between my brethren and myself is this: As I understand the Constitution, it does inhibit the Legislature from putting local option laws into effect in any territory in Texas, and that there is no manner or means by which that can be done except by a vote of the people. The Constitution expressly so provides wherein it says the Legislature shall at its first session pass laws whereby the people may from time to time vote to prohibit the sale of intoxicating liquors. This is not only restrictive and restraining, but is exclusive. I do not care to go further into that field of discussion. It has been settled by so many decisions that it would seem all sufficiently plain that the matter ought to rest where the Constitution places it.

I believe my brethren do not state appellant's contention fairly when they say "that the people might not have voted in favor of the law if they had known the Legislature would pass laws to enforce it." The contention of appellant is that the people might not have voted for the local option law if this statute had been in force at the time they voted local option into existence in Red River County. Appellant does not make any contention that the people might not have voted for the law if they had thought the Legislature would make laws to enforce it. They voted at the time they did vote upon a different law which the Legislature had provided, and not only so, but all necessary remedies for enforcing it. The law under consideration was not in existence and they did not have the opportunity to vote upon it. The contention of appellant is that, inasmuch as they did not vote for it, it being a local option law, the Legislature could not force it upon them; that the local option laws can not be put in force in any territory in Texas except by a vote of the people. Here the Legislature puts it in force without reference to that vote. It is true that all good citizens want to see the law enforced while it is the law, but the good citizens do not want to see a man punished until it is the law. I would say, as far as my observation goes with reference to the good citizenship of Texas, they do not believe in punishing men until there is a law authorizing such punishment and that law has been put properly in force. Nor do I believe the good citizenship of Texas would want to punish any man where there is no law justifying it. The good citizenship of Texas and the bar and bench have always understood, since the Constitution of 1876 was ordained and put into operation, that the only way of putting local option into effect was by direct vote of the people of the territory to be affected by it, and that the Legislature had no authority to impose upon them a law they did not want. The good citizenship of Red River County have never had an opportunity, so far as this record shows, to vote upon the law under which appellant has been convicted. I do not care to follow this subject any further.

With reference to the burden of proof, presumption of innocence and reasonable doubt, and matters of that character that are involved in this appeal and urged by appellant, I might write at length, but having written pretty fully in Bell v. State, decided at the present term, I refer to that opinion for discussion of those questions. And I would not have written a dissent in this case, but would simply have relied upon my dissent in other cases, except for the fact that my brethren are holding that a charge quoted in the majority opinion is correct exposition of the law. The question involved in the charge is not discussed in my dissent in the Bell case, supra. I do not care to repeat the charge. It will be found in the majority opinion. The charge falls far short of submitting the issues arising under the law and the facts. Under that charge given, if the jury should believe that appellant followed the business of selling intoxicants, and made two sales, he would be guilty. The use of the word "unlawfully" in the charge adds nothing to the validity or correctness of the charge. Appellant could sell "unlawfully" as many as two times, or oftener, and yet be entirely innocent of violating the statute under which he was indicted and convicted. That statute, among other ingredients or elements, requires that the sale must occur in a manner not permitted by law. There is no attempt on the part of the court to tell the jury what "unlawfully" means, or what it takes to constitute a violation of the law. In order to properly charge under that statute the jury ought to be informed, and the law requires that they should be instructed, in regard to that phase of the statute which permits a person to sell and under which he would not be guilty. The question may be asked, what does "unlawfully" mean, and what would the jury understand by that word standing alone and unexplained? It might readily be answered, nothing. They are not informed what it takes to constitute selling "unlawfully" or in pursuing the business "unlawfully;" nor were they given any criterion or legal rule by which they could understand what it takes to constitute such unlawful selling. The statutes of our State authorize the business of selling intoxicants in local option territory. Acts 1897, page 223. Under the terms of that Act parties may by paying the required tax and, securing the license, and giving bond, sell intoxicants under the terms prescribed in the statute. There are other ways by which such selling may be lawfully done. So far as this record is concerned, appellant may have had his license to follow the business. The evidence throws no light upon this subject at all. There is not a word in the record to the contrary. In fact the evidence is silent as to whether he did or did not have a license or authority to sell. It is true, the record does disclose that he was not selling in a house, but that would be a different matter. He might have had license and the place designated in the license as required by law, and yet sell away from the place indicated. He might be violating another phase of the law, but if so it was a violation of the law, and the jury were not informed in regard to that matter. The statute under which appellant is indicted, as do all penal statutes, requires evidence to be introduced by the State in order to secure a conviction. This evidence must be cogent enough to overcome the presumption of innocence and reasonable doubt and to fully meet the statutory definition. The accused is not required to furnish evidence against himself to the end that the State may convict him. To require of him, as is done in this case, to furnish this evidence, places the burden of proof on him to prove his innocence, or on the other hand, it requires him to furnish to the State evidence with which to make its case as a predicate for conviction. In either event the burden is shifted from the State to his shoulders, and he is forced either to prove his innocence or furnish the State evidence to convict. I know of no statute under which the accused must prove his innocence in order to avoid a conviction, or where the failure to do so will afford justification for his conviction. An inspection of the charge demonstrates an utter failure to set forth any rule or criterion by which the jury may be able to ascertain what the court meant by the use of the term "unlawfully." The charge in this respect is as indefinite as can well be framed in the English language. Definiteness and particularity in charging the jury in regard to the law of the case applies to every other offense in Texas under the law except sales of intoxicants. I do not understand why violations of this statute should be an exception to giving the jury a legal and proper charge. This court has at all times reversed on charges in other character of cases similar to that given in this case, for want of certainty in defining the offense and the law pertaining thereto in the charge. This rule is without dissent in murder cases. Clark v. State, 51 Tex.Crim. Rep.; Smith v. State, 57 Tex.Crim. Rep.; Best v. State, 58 Tex. Crim. 327; Patton v. State, decided at the present term of court, are murder cases.

In the above cited cases the charge was in regard to murder in the second degree. Illustrative of the proposition here asserted, reference will be had to the charge on murder in the second degree given in the Clark case, supra, which is as follows:

"If you believe from the evidence beyond a reasonable doubt that the defendant . . . with a deadly weapon did unlawfully shoot and thereby kill Alonzo Porter, as charged in the indictment, you will find him guilty of murder in the second degree," etc.

That case was reversed because the charge did not inform the jury that the killing must be upon implied malice aforethought, the term "unlawfully" not being sufficient for that purpose. It was held that the charge was as applicable to manslaughter as to murder in the second degree. In other words, it may be stated that all of those cases were reversed because the law was not sufficiently defined in the instructions given the jury. All the cases support the Clark case, and this without exception. But that was a murder conviction, this is not. This conviction was for selling intoxicants in local option territory. The cases cited were reversed on a similar charge to that given in this case, and which affords here the basis of affirmance. "Unlawfully" carrying a pistol is not sufficient either in the indictment, the charge or the recognizance, by all the authorities. Other instances could be given, but these are deemed sufficiently illustrative. I do not believe such discrimination ought to exist, and that such discrimination is not justified by law. If the charge is not the law in one case or in regard to one offense, it ought not to be in the other offense. The accused ought legally to have the same fair trial in one instance as in the other. If "unlawfully" shooting a man with a pistol is not a sufficient charge in regard to malicious homicide, it might be seriously asked, How can "unlawfully" selling intoxicants be a sufficient instruction in regard to selling intoxicants under a statute which sufficiently defines the mode and manner of selling the same? The divergence in such reasoning is too abtrusely mysterious to be entertained. The accused should have and be accorded the same fair and legal trial in one case as in the other.

The cause ought to be reversed and the accused given a fair and legal trial, as he would be accorded in other cases. I enter my dissent.