As the indictment is attacked, we will set out the charging part, as follows: That Walter Cousins, * * * "did unlawfully engage in, pursue and follow the occupation of selling medicated bitters in quantities of one quart and less than one quart, the said occupation being taxable by law, without first obtaining license therefor, and the taxes then and there due by him to the said State *Page 89 upon said occupation amounted to $300, and the taxes then and there due by him to said county amounted to $150, the said taxes due the said county having been theretofore duly levied by the commissioners court of said county," etc. The second count is not inserted because not submitted by the trial court. It charges selling exclusively malt liquors; the evidence showing that the compound sold was known as "Herbicura." Several grounds of objection are urged to the sufficiency of this pleading: First, the indictment fails to charge that the "medicated bitters was capable of producing intoxication;" second, it charges the selling in quantities of a quart and less than a quart, whereas the statute provides that the license shall be for selling one gallon and less than one gallon, and for selling a gallon and more than one gallon; and third, it fails to allege whether the sale occurred within or out of a local option territory. The statute of 1893 repealed all prior laws levying occupation taxes, and required the license for the sale of intoxicating liquors and medicated bitters or malt liquors. That act provided, as does the act of 1897, that any party who desired to engage in this business should first pay the State of Texas an annual tax of $300 on each separate establishment for selling such liquors or medicated bitters in quantities of one gallon or less than one gallon; and for selling such liquors or medicated bitters in quantities of one gallon and more than one gallon; and a much smaller tax upon selling malt liquors exclusively. See Acts 1893, p. 177; Acts of 1897, p. 223. The section levying this occupation tax is numbered article 5060a. The act of 1897 levies a tax of $300 on the sale of intoxicating liquors other than malt liquors, and malt liquors at $50, where the party engages in the business in a county, subdivision of a county, justice precinct, city or town, where local option is not in force; and in a county, subdivision of a county, justice precinct, town or city, where local option is in force, the tax is fixed at the sum of $200, without reference to whether it is malt, spirituous or vinous liquors. So it would seem by the terms of this act that the indictment or information must allege the fact that the business was carried on in a county, subdivision of a county, justice precinct, city or town where local option is not in force, or where it is in force, as the case may be. These provisions of the law were inserted in what is termed the enacting clause, and distinguishes the occupation in a local option territory from that which is not in local option territory. If as a matter of fact the local option law was in force in that particular county, subdivision, city or town where appellant was carrying on his business, that fact should have been alleged. The language is clearly as emphatic in regard to carrying on the business in the territory wihch is not under local option. So, if appellant was caryying on his business where the local option law was not in force that fact should be alleged. The punishment could be entirely different, and is different so far as the punishment by fine is concerned. The minimum *Page 90 punishment for selling spirituous and vinous liquors in a non local option territory could not be less than $450, where the county requires payment of the tax; whereas in a local option territory, the minimum punishment would be $200 if only the State tax was to be paid and $300 if the county had levied a tax of $100. And in an anti-local option territory, where malt liquor alone is sold, the minimum punishment would be $50, if only the State tax was imposed, or a total of $75 if the county tax was imposed; whereas in a local option territory it could not be less than $200 for the State tax alone. The Legislature has seen proper to use the language employed in article 5060a in distinguishing this territory, and in levying a different tax under the circumstances stated, and having done so, it is incumbent on the pleader to state the necessary ingredients of the offense to bring it within the terms of the law.
The indictment is also fatally defective in that it fails to allege that "medicated bitters were capable of producing inoxication." This is made a part of the law by the article above cited. See also article 411a, Penal Code.
The other point is also well taken, that the indictment should have charged that appellant was selling in quantities of a gallon or less, or quantities of a gallon or more, as the facts justify. There seems to be no law in this State limiting the right to pursue this business of selling intoxicants in quantities of a quart or less, or a quart or more. We are of opinion the indictment is fatally defective, and the motion in arrest of judgment should have been sustained.
The State was permitted to prove the sale of other intoxicants than medicated bitters. One witness testified that he bought what he took to be diluted alcohol. This was error. If there should be another trial the law in regard to mistake of fact should be charged, if the facts should be as here presented.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.