Appellant was convicted for pursuing the occupation of selling spirituous, vinous, and malt liquors and medicated bitters in quantities of a gallon and less without having previously paid the occupation tax due thereon, and his punishment assessed at a fine of $450, and appeals. A number of errors are assigned, but we will only notice such as are necessary to a disposition of the case. With reference to the first bill of exceptions, without proof that the brandy cherries bought from other persons were of the same character or similar to those sold by appellant, it was improper for the court to have admitted the testimony with regard to the effects produced by such other brandy cherries. The bill shows that there was no proof that they were similar to those sold by appellant. There was no error in the refusal of the court to permit the witnesses for the appellant to testify that the sale of the cherries was not a device to evade the law. The witnesses could state the facts, but the expression "device" was a mere conclusion. It was competent on the part of the appellant to show by the witness, Harris, if he could, the formula under which the brandy cherries in question were put up. If he was an expert on the subject, and knew the facts, he could testify thereto. But it was not competent to prove by him the United States internal revenue laws on the subject, or that brandy cherries were nontaxable. The laws and regulations of the revenue department speak for themselves. It, was not competent to prove by Adoue, and others that they told the defendant that it was no violation of the law to sell brandy cherries. Nor was it competent to prove that the United States internal revenue department collected no tax, or that the Comptroller of the State of Texas had written or stated that in his opinion no tax could be collected on brandy cherries. We do not think that proof as to the question of intent on the part of the appellant was admissible, as there was no contention that he was mistaken as to the fact that he was selling brandy cherries. In a case of this character it is a simple question as to whether or not the sale was of spirituous liquor — that is, made taxable by law; and if a party engages in the business of selling such, and does not pay the tax, he can acquit himself, even after indictment, by paying the tax and such costs as have accrued; and we fail to see how the question of intent figures at all. He can prove the fact that the beverage sold was not spirituous liquor, and so not be amenable to the tax. But the fact that he was engaged in the business of selling spirituous liquors without intending the same, unless it be shown that he was mistaken as to the fact, would not relieve him from the payment of the tax. It all depends on whether or not he was engaged in that business. It is shown in the record that the Commissioners' Court levied a tax on the 15th of *Page 102 February, 1895. The only sales for 1895, shown in the record, were in January, and some sales were also shown to have been made in the latter part of 1894. No levy by the Commissioners' Court of a county occupation tax is shown for the year 1894, so that the sales shown in 1895 were before any levy made for that year. The statute with reference to pursuing occupations, requires persons desiring to pursue such occupation to "file with the County Clerk in which he or they propose to sell such spirituous, vinous or malt liquors or medicated bitters, an application for license to engage in the sale of such liquors or medicated bitters," prescribing the form for such application; "and shall also pay to the collector the annual State and county tax provided for," etc. See Arts. 5060c, 5060d, Rev. Stat., 1895 Art. 833, Rev. Stat., 1895, provides: "All occupation taxes due the county shall be collected by the tax collector of the county without assessment, and the collector shall give to the party paying the tax a receipt in writing, stating the name of the person paying the same, the occupation paid for, the time such occupation is to be pursued, and the amount collected for the State and for the county." Article 834: "Upon the presentation of the receipts provided for in the preceding article, to the clerk of the County Court of the county in which such tax has been paid, such clerk shall issue a license in the name of the State or county, or both, in accordance with the tax paid, to the person paying such tax, authorizing him to pursue the occupation named in such receipt, during the time for which he has paid the tax." Until the levy of the tax in 1895 by the County Commissioners' Court, the appellant could not be held to pay a tax under such levy. He could only be held to pay a county tax levied under existing laws. No levy of a county tax is shown by the record anterior to the time when appellant is shown to have sold the brandy cherries; and, in the absence of such levy, appellant could not be held responsible for any county tax. Much less can he be held responsible to pay a county tax subsequently levied. To hold appellant responsible criminally to pay a tax not yet levied would be violative of the provisions of the Constitution with reference to ex post facto laws. If the County Commissioners Court had passed a law levying a tax upon the sale of spirituous liquors for 1894 (which is not shown), it was the duty of the appellant to have made his application to pursue the occupation under that law, and to have paid the tax levied thereunder. The law authorizes these applications to pursue this occupation to be made at any time, but they cannot be granted for a less period than one year. They run, however, for the period of one year from the time they are granted. Appellant also insists that the case should be reversed because the court failed to charge the law applicable to this offense. The court charged that, if they found the defendant guilty, to assess his punishment at not more than double the State and county tax. This was the old statute of March 13, 1875 (Art. 110, Penal Code). In 1893, the legislature passed an act which has been carried forward in Penal Code, 1895, and is Article 411a, which provides that the punishment in cases of this character shall be a fine in any *Page 103 sum not less than the amount of the taxes so due and not more than double that sum, or imprisonment in the county jail from ten to ninety days, in the discretion of the jury. See, Prinzel v. State, 35 Tex.Crim. Rep.. Appellant urges that the evidence ill this case does not sustain the verdict, because he says brandy cherries is not a spirituous liquor, and that the sale of brandy cherries is not amenable to the tax. He cites us two cases on this subject — one, Rabe v. State, 39 Ark. 204. That case is similar to this one, except that the prosecution was for selling brandy peaches without having paid the tax and procured a license. It was shown that the bottles contained six peaches surrounded by one gill of fluid or syrup, which tasted like strong liquors. The witnesses thought that this liquid might intoxicate if one were to imbibe enough of it, but it was very weak. The lower court convicted on this state of facts. The Supreme Court reversed the case on the ground that the evidence did not sustain the conviction for selling ardent spirits without having first paid the tax and procured the license thereof. But see, Musick v. State (Ark.) 10 S.W. Rep., 225. The other case referred to is Ryall v. State, 78 Ala. 410. The defendant in that case was convicted upon the indictment for selling spirituous liquors to a person of known intemperate habits, etc. The evidence shows that the defendant sold what is commonly known as brandy cherries and brandy peaches, put up in bottles and preserved in liquor, which was spirituous and intoxicating. The court below charged the jury that if they believed that the brandy peaches and cherries were preserved in liquor which was spirituous and intoxicating, they might find the defendant guilty. The Supreme Court, in passing upon this question, say: "We see no error in this ruling. The case falls fully within the letter of the statute, as well as within the mischief intended to be remedied by it. If spirituous and intoxicating liquor was sold, as the evidence tended to prove, there was no proof offered to show that it was rendered any the less noxious in its stimulating and inebriating qualities by the fact that fruit was mixed with it at the time of the sale. If persons were allowed to escape the penalty of this statute by merely adding some other article or ingredient to intoxicating liquors when made the subject of traffic, it is obvious that the law could be evaded with the greatest facility by any person who desired it. Such a construction would practically operate to repeal the statute." This case seems to be against the contention of the appellant. The case of U.S. v. Stafford, 20 Fed., 720, was for the sale of distilled spirits and wines without the payment of the federal tax required by law. Judge Caldwell, before whom the case was tried, treats brandy cherries and peaches as of two classes. He says: "The introduction of peaches or cherries into liquor does not necessarily change its character any more than did the introduction of drugs in the cases of the 'tonics' and 'bitters' which I have mentioned. There is probably not a package of genuine brandied peach or cherry preserves in the State outside of those put up by housewives for family use. Between the genuine brandied peach or cherry preserves put up for legitimate domestic *Page 104 use as confectionery, and the so-called 'brandy cherries' described by the witnesses in this case and sold by the defendant, there is not the faintest resemblance. One is an edible and palatable preserve, and used as such; the other, as the proof shows, is neither edible nor palatable, and is not used as a preserve or for food, but as a stimulating beverage and for the spirits it contains. The method of making brandied peach preserves is laid down in the standard authorities on the subject of the preservation of food. The fruit, after being properly prepared, is boiled in a syrup made of refined sugar and is then placed in a bottle, the syrup poured over it, and a sufficient quantity of pure, pale brandy added, to impart to it the desired brandy flavor, just as brandy is used as an ingredient in our pudding sauce or mince pies, for the purpose of improving their flavor." It occurred to us that the question here presented is a simple question of fact. The law makes the sale of spirituous, vinous, or malt liquors or medicated bitters without procuring a license therefor a crime. If the defendant, in this case pursued the business or occupation of selling brandy cherries or brandy peaches, and in bottles in which the same were contained were not merely cherries or peaches preserved as we have seen with the use of a little spirituous liquor to give them a flavor, but with the peaches or cherries was contained spirituous liquor that could be drunk as a beverage, and that would intoxicate, he was amenable to the law. This is the view we take of the question. For the errors discussed and pointed out, the judgment is reversed, and the cause remanded.
Reversed and Remanded.
HURT, Presiding Judge, absent.