ON REHEARING. June 23, 1905. Motion for Rehearing Overruled February 21, 1906. This case was reversed at a former day of this term (Judge Brooks, dissenting), and now comes before us on motion by the State for rehearing.
We notice in the dissenting opinion, it is stated that the court charged in favor of appellant on the subject of gift, and told the jury that it is not an offense against the laws of the State of Texas for any person to give away beer to any one on Sunday, and if they believed defendant gave the bottle of beer in question to R.J. Roark, to find him not guilty. Among other things, in the dissent, it is stated, if the jury had believed appellant's testimony under the charge above quoted, they would have found defendant not guilty. It occurs to us that this concession is too broad, and in effect disposes of the State's case, as we can see no difference between appellant's testimony and that for the State. With one accord all of the witnesses, both for the State an the defendant, appear to agree that the lunch in question was paid for; in fact all lunches were paid for, and that the beer or other drink was furnished free.
We further note that the dissenting opinion brings the local option law into the case, and refers to the effect that the holding of the court will have in local option territory. We presume that no one knows better than our Brother Brooks that on this record the sale of intoxicating liquor could not be maintained, inasmuch as nowhere is it shown that the beer alleged to have been sold was an intoxicant, and this court holds such proof must be made before the conviction can be had. Enno Cassens v. State, decided at present term, and cases there cited. *Page 205
But to get away from local option and to recur to the case, which is a prosecution brought under article 199, Penal Code, in which appellant is charged as a dealer in goods, wares and merchandise, with the sale of a bottle of beer to one Roark, on a certain Sunday. Let us review the question, and see whether or not on principle and under the authorities the evidence shows a sale of the beer in question. The Assistant Attorney-General, lawyer like, has postulated a case to us. Assume, he says, that H. K. (clothiers of the city of Austin) advertised that with every $25 suit of clothes sold they will give a hat, worth $5. Seeing the advertisement A purchases of said firm a suit of clothes, for which he pays $25. They do not deliver the hat, which he demands as a part of the consideration. Can he recover the hat or its value under such circumstances? He insists that the hat or its value can be recovered as a part of the consideration for which the $25 was paid. He not only makes this illustration, which is an exceedingly apt one, but he cites us to cases supporting his contention. Among others, Com. v. Thayer, 8 Met. (Mass.), 525; State v. Simons, 17 New Hamp., 83. In the first case there was a complaint against defendant for selling to Albert Hersey a glass of spirituous liquor on the 19th of February, 1844. It appeared that defendant was the keeper of a public house, in which was a bar and a bar-keeper. State's witness Hersey testified that he never bought any spirituous liquor from defendant. He bought a cake of him for 6 cents, and at the same time a decanter of spirituous liquor was set upon the bar, from which he helped himself; that he never bought a similar cake for less than 6 cents; that he did not know the value of the same. The court below instructed the jury, if they believed that any part of the 6 cents was given to the witness and received by defendant to pay for the liquor, it constituted a sale, and the defendant was guilty. The jury returned a verdict finding defendant guilty, and he alleged exceptions to said instruction. The court in passing on the question here presented, say: "The question whether the defendant sold the liquor as alleged in the complaint, was submitted to the jury under proper instructions. The government alleged the sale to Albert Hersey, of one glass of spirituous liquor, and was bound to establish the fact. To constitute such sale, there must be the assent of the two parties. There must be a vendor and a vendee. But no words need be proved to have been spoken. A sale may be inferred from the acts of the parties, and no disguise which the parties may attempt to throw over the transaction with the view of evading the penalty of the law, can avail them, if in truth such sale is found to have taken place. The ruling of the presiding judge, as to the payment of any part of the money, and the receipt thereof in payment for the liquor, constituting a sale, was correct." In the Simons case, supra, "the indictment alleged that defendant, not being a licensed taverner or retailer, sold two glasses of spirituous liquors to one George Stevens, on the first day of January, 1845. It appeared that about the first of January, 1845, said Stevens and one James Collins came *Page 206 into defendant's cellar in Manchester, where he kept fruits and confectionery, and Stevens called for some spirits, but the defendant replied that he did not sell spirits, and refused to sell them any; that Stevens then bought a pound of walnuts, and paid him 16 cents for them, and the defendant said he had opened a new cellar, and wished Stevens to look about it, and said further that he could afford to treat, and then took Stevens and Collins into a back cellar, under the tenement, which he occupied, and asked them what they would take, naming over the kinds of liquor contained in the casks which stood in the cellar. Stevens answered `rum,' and he let each of them have a glass of it. Both cellars were under the same building, but separated by a reading room. Defendant's counsel requested the court to instruct the jury that `there was a sale of the nuts and the purchase money paid, and a delivery; that the sale was therefore complete, and that no article delivered afterwards could be included in that sale; and also that the spirituous liquor alleged in the indictment to have been sold, was a gift.' But the court declined, and instructed the jury, that if they found that the sale of the nuts was a bona fide sale of the nuts only, and the delivery of the spirit was in no way consequent upon the sale of the nuts, but was a gift, the defendant was not chargeable; but if they found that the sale of the nuts was made with the intention of including also the price of the liquor, and that the price of the liquor was taken and included in the money paid ostensibly for the nuts, it was the same as if the liquor had been sold directly, and without any such subterfuge; that in the latter case it would make no difference whether the spirit was delivered before or after the payment of the money." The court say, upon this branch of the case: "As to the evidence of the sale of the liquors, it was a question of fact for the jury, and the evidence was properly submitted to them. They were instructed to inquire whether the language used by the parties to the alleged sale, and their accompanying acts, were used by them to effect a sale of the liquor under such disguises as would render the detection of the crime difficult; or whether, on the other hand, it was the purpose of the defendant to bestow, and of the other parties to receive, the liquors as a gift. Offenses against the law are commonly committed under the protection of some false pretenses designed to avert or baffle the vigilance of the police, and other evidence than the plain admissions of the parties charged is commonly found necessary for their conviction. The question was, did the prisoner sell the liquor as charged? and not, did he use language while he sold it that admitted the criminal nature of the act? The jury were authorized to find a sale, from the call which was made for the article, and its subsequent delivery, and to attach such weight to the words of the prisoner while committing the act, as they thought the words deserved."
These cases are very much in point and had they been called to our attention originally we undoubtedly would have held that the transaction narrated by the witnesses in dispensing the beer amounted to a *Page 207 sale, and under proper instructions the jury would be authorized to so find. We do not think the instructions given by the court below on this point are full enough or in accord with the authorities before referred to. However, no exception was reserved to the charge on that account. In accord with the principle announced in the cases cited, we hold that it was competent for the jury to find that the beer constituted a part of the consideration for the 15 cents given for the lunch. Ordinarily it would appear that a party might sell one article and make a gift of another. The testimony of the witnesses, both for the State and defendant, was to this effect: that is, that the beer was not sold; the lunch was the article bought, and the beer was a mere gift. It occurred to us, in the original opinion, that this character of testimony settled the case in favor of defendant, inasmuch as no effort was made on the part of the State to show that the lunch was of less value than was charged. In fact the lunch was shown to be of equivalent value. It occurred to us that under similar circumstances, if the saloon keeper set up free lunch to the customer should he come in and purchase a glass of beer, and at his option partake of the free lunch, that this would not amount to a sale of the lunch, but merely a gift; and such seems to be the common understanding. However, as stated, the authorities cited establish the contrary doctrine, and leave the sale or gift a matter to be determined by the jury under proper instructions, and on a more deliberate investigation of this question, in connection with the authorities furnished by the Assistant Attorney-General, we believe that this is the correct doctrine.
There is another question urged by appellant why the case should be reversed, which was not noticed in the original opinion, because it was not necessary as the case was reversed before we reached the second question. That is, whether a restaurant keeper or a hotel keeper is authorized in this State to furnish malt liquors and wines with meals to his guests. On this branch of the case appellant refers us to the following authorities: Atkinson v. Sellers, 94 E.C.L., 447; Fisher v. Howard, 10 Cox, C.C., 144; Taylor v. Humphreys, 100 E.C.L., 429. In re Breslin, 45 Hun (N.Y.), 210; Com. v. Molter,142 Mass. 533. The first three cases are from English courts, and were decided under statutes of Queen Victoria, authorizing hotel keepers to furnish liquors to guests. And so the New York case and the Massachusetts case were both under statutes to the same effect. In this State we have no such statute. The mere fact that the hotel keeper or restaurant keeper can pursue his occupation on Sunday, would not authorize him to violate any other prohibitory law. In the absence of some statutory enactment in this State authorizing hotel keepers or restaurant keepers to furnish liquors with meals on Sunday, we hold that it is not lawful for them to do so.
There are some other questions raised in appellant's assignments of error, but we do not deem them of sufficient importance to review. The motion for rehearing is granted, and the judgment is affirmed.
Affirmed. *Page 208