The conviction is for violation of the intoxicating liquor law; punishment fixed at confinement in the penitentiary for a period of three years.
The count in the indictment upon which the conviction rests contains this language:
". . . did then and there keep and was interested in keeping a building, room and place used for the purpose of selling spirituous, vinous and intoxicating liquors and malt liquor and medicated bitters, capable of producing intoxication."
The indictment is attacked upon the ground that it fails to charge that the building was "knowingly" kept for the purposes named in the indictment. The statute declares the acts described in the indictment unlawful, and concludes thus:
". . . and any one who knowingly does so shall be guilty of violating this Act and shall be punished accordingly, etc." (See Complete Texas Stat., 1920, P.C., Art. 588 1/400, p. 83.)
The criticism of the indictment appears to be well founded. Where the act charged in the offense does not necessarily imply a guilty knowledge, and where such knowledge is the substantive ingredient of the offense, it is necessary that the indictment contain an averment that the act was "knowingly" done. Wharton's Crim. Proc., 10th *Page 101 Ed., Sec. 210. Particularly is this true where the statute denouncing the offense expressly requires that the act be "knowingly done." The following cases bear upon the question: State v. Stalls, 37 Texas Reports, 440; Simon v. State,31 Tex. Crim. 187; Fox v. State, 3 Texas Crim. App., 329; Tynes v. State, 17 Texas Crim. App., 126; Barthelow v. State, 26 Tex. 175 [26 Tex. 175]; Castle v. State, 23 Texas Crim App., 287. It is conceived that the nature of the act denounced as criminal by the statute in question is not one from which guilty knowledge may be necessarily implied. Moreover, the statute upon which the prosecution rests declares in terms that the act to be criminal must be knowingly done. (See Art. 588 1/400, supra.)
In March, 1921, appellant leased the premises for a year. He was granted permission to assign his lease. This, according to the testimony introduced, was done on October 20, 1921. Holt, his assignee, testified that he had purchased the cold-drink business which appellant had conducted in the building in question. On October 26, 1921, sales of intoxicating liquors were made by persons on the premises, and seven pints of whisky were found there. Appellant on that date was not shown to have been present. Holt also testified that appellant had no interest in the business except that he was to receive part of the money taken in by Holt in the conduct of the business sold to be applied on the unpaid part of the purchase price. He was not present when the sales were made, and there is an absence of direct proof shown as to when or how the seven pints of whisky came upon the premises. The direct evidence, if believed supports the theory of appellant that he had dispossessed himself of the premises before the offense was committed. To overcome this testimony, the State relies upon the inferences deducible from the facts proved, but not upon direct evidence connecting appellant with the commission of the crime. The situation did not warrant the court in refusing appellant's request for an instruction on the law of circumstantial evidence. Miller v. State, 88 Tex. Crim. 77, 225 S.W. Rep., 380, and cases listed therein.
The errors pointed out require a reversal of the judgment. It is so ordered.
Reversed and remanded.