Appellant was convicted of the unlawful selling of intoxicating liquor without a license in a local *Page 466 option district. Appellant assigns as error the action of the court instructing the jury, in effect, that they could regard the special revenue license shown to have been in possession of appellant as prima facie proof of the sale of the liquor in question. He contends that the law with reference to selling liquors in local option districts was passed since the law making the United States internal revenue license prima facie evidence, and that therefore it does not apply. While we believe the internal revenue license was admissible in evidence as tending to prove that appellant was engaged in the sale of intoxicating liquors, yet we do not believe it established a prima facie case under this statute. The State must not only show a sale of liquor, but it must show that the party was engaged in the business of selling liquor in local option territory under prescriptions. A person might sell intoxicating liquor in local option territory, not under prescriptions, and not be amenable to the tax; and, in our opinion, the court should not have given the charge complained of. If we recur to the statement of facts in this case, the State absolutely failed to show that appellant was engaged in the business of selling intoxicating liquor in local option territory under prescriptions, and, without this proof of sale under prescriptions, the State could not claim a conviction of appellant. It is true, defendant admitted that he was preparing to engage in such occupation, and had the liquor on hand for that purpose, yet, in the absence of proof that he had actually engaged in the occupation on which the tax was levied, the State could not sustain a conviction. Appellant admits that he had sold a quantity of what he claimed to be hop ale, and which a State's witness testified was beer, and intoxicating, yet there is no pretense that the sale of this beer was under prescriptions. In this regard, he may have violated the local option law for selling said beer without a prescription, but this was not the pursuing of an occupation authorized by law, and on which a tax was levied.
As to the indictment, I expressed my views in Snearly v. State, 40 Texas Criminal Reports, 507. However, since that opinion was written I have had occasion to review the question. I believe the better practice would be not only to set forth that defendant pursued the occupation of selling intoxicating liquor or medicated bitters, as the case may be, in the local option territory (describing the same), without paying the tax required (stating the amount of the State and county tax levied), and without having procured a license therefor, and should, in addition, allege that he was engaged in the sale of such liquors on prescription, and, further, that such liquors were not tinctures and drug compounds sold by druggists, and which are used and sold on the prescription of a physician or otherwise, and which were not intoxicating beverages prepared in the evasion of the occupation tax act and the local option law; in other words that the indictment or information should contain the negative averments embraced in the enacting *Page 467 clause, being article 5060a, Acts Twenty-fifth Legislature. This is in accord with the principles of pleading, and with the trend of decisions on this subject. For the reasons stated, I concur in the disposition of the case.