Mealer v. State , 66 Tex. Crim. 140 ( 1911 )

The motion for rehearing in this case presents but one question, and that is whether the complaint and information, in effect, on their face charge a felony instead of a misdemeanor. The date the offense is alleged to have been committed in the complaint and information is that "heretofore on the 1st day of August in the year of our Lord One Thousand Nine Hundred and Nine, in the county and State, etc.," then proceeds to charge an unlawful sale on that date by appellant R.V. Mealer to S.F. Scott in a certain common school district in the County of Dallas, Texas, after an election had been held in said district prohibiting the sale of intoxicating liquors therein, without stating the date on which the election was held. Prior to the Act, approved April 24, 1909, p. 356, it was a misdemeanor only to sell intoxicating liquors in any county or subdivision thereof where prohibition had been voted upon, carried, the election declared and published, putting it in force. The said act approved April 24, 1909, did not become effective anywhere in this State until on or after July 24, 1909. Under the law of this State that enactment was not in force, although it is a law on the statute book, until put in force in a given prohibition territory by an election thereafter held, declared, published and thereby put in force. So that while it is a law of the State, it is never effective anywhere until the election, etc., puts it in effect.

Our statute, in prescribing the requisite of an indictment and an information, requires that it shall state the date on which the defendant has committed an offense and it has been uniformly held by this court and the Supreme Court when it had criminal jurisdiction, that the indictment or information and complaintmust give the day, month and year of the commission of theoffense. Barnes v. State, 42 Tex.Crim. Rep.; Vallegas v. State, 66 S.W. Rep., 769; Coleman v. State, 62 S.W. 753; Thurman v. State, 45 Tex.Crim. Rep.; Eubanks v. State, 41 Tex. 291 [41 Tex. 291]; Slack v. State, 30 Tex. 355; Johnson v. State, 32 Tex. 96.

It has likewise uniformly been held by this and the Supreme Court that the allegation of the date when an offense wascommitted is a matter of substance, and that it can not be amended. Drummond v. State, 4 Texas Crim. App., 150; Little v. State, 19 S.W. 332; Hawthorne v. State, 6 Texas Crim. App., 562; Goddard v. State, 14 Texas Crim. App., 566; Huff v. State, 23 Texas Crim. App., 291; Whitley v. State, 56 S.W. 69; (Sanders v. State, 26 Tex. 119).

A pleading both in criminal and in civil law is measured by the allegation thereof, never by the proof that may be introduced thereunder. Mr. Bishop, in discussing the allegation of time as to the sufficiency of an indictment, says:

"From the proposition that the indictment on its face must disclose a prima facie case against the defendant, it results among other consequences, that in considering whether or not it is sufficient, the court will assume the time to be as statedtherein." 1 Bish. New Crim. Proc., (4 ed.) sec. 403.

It is true, that it is the uniform holding of this court and of the Supreme Court that when an indictment or information charges that an offense has been committed on a particular date, that proof can be introduced thereunder showing the commission of the offense at any time between the day of the filing of the indictment or information and the time prior thereto within the period of limitation of the offense. The only exception to this is that when an offense can be committed only on a given date or on a given period of time, such as a certain season of the year, or on Sunday, then the offense must be charged to have been committed on a date within said season or on a date which is Sunday. It is unnecessary to cite the authorities to this effect, because there is and can be no doubt about this. If an allegation in an indictment or information is to be gauged or judged by the proof instead of by the allegation, then any indictment which charges a misdemeanor could allege that it was committed at sometime within a period of two years prior to the day of the filing of the indictment, without alleging the day, month and year and that an indictment charging a felony, such as robbery, was committed at some time within ten years prior to the day of the filing of the indictment without giving the day, month and year. No such indictment could or would be sustained in this court.

As stated above, the offense in this case was charged to have been committed on August 1, 1909. We therefore, know that it was a physical impossibility to have ordered, held, declared and published for four weeks after prohibition had been carried, an election putting the felony statute in effect in the district in Dallas County where this offense is alleged to have been committed, because it is alleged to have been committed August 1, only seven days after the Act of the Legislature was in condition to be put into effect in any prohibition territory. So that, as we know that the felony statute could not have been in effect, under the law within eight days after it became a law of the State, the information and complaint in this case did not charge a felony but charged a misdemeanor.

The case of Head v. State, 64 Tex.Crim. Rep., 141 S.W. Rep., 536, in the cases of Hamilton v. State, and Myers v. State, recently decided but not yet reported, has been correctly modified, after a thorough investigation of the questions and the authorities which are cited in these last two cases. We, therefore, adhere to the original opinion in this case and hold that the lower court did not err in overruling appellant's motion to quash the indictment and in arrest of the judgment. The motion for rehearing herein will be overruled.

Overruled.