Appellant has made a motion for rehearing. He accompanies it with proper certified copies which were omitted in the transcript when we acted on the case originally, showing that the court below did grant the writ of habeas corpus applied for, and heard the evidence and tried the case regularly so far as it could be heard and tried under a writ of habeas corpus. The former judgment herein entered dismissing this cause, is, therefore, set aside, the rehearing granted and we now pass upon the merits of the case, so far as we are authorized to do so in this proceeding.
Appellant was regularly indicted by the grand jury of Cooke County under the Act of August 21, 1913, page 62, known as the Allison Law. The indictment contains two counts. Both properly allege that the law prohibiting the sale of intoxicating liquors in Cooke County had been duly voted upon, prohibition carried, proper orders, publication, etc., made so that the prohibition law was in force in said county at the time the offense in this case is alleged to have been committed.
The first count is under section 2 of said Act which, so far as this offense applies to appellant is concerned, is: . . . "It shall be unlawful for any person . . . in this State to deliver to any other person . . . any intoxicating liquor for shipment, transportation, or carriage within this State." The first count avers that on April 26, *Page 478 1914, appellant in said State and county "did unlawfully deliver to Bill Young intoxicating liquor for shipment, transportation, and carriage within this State."
The second count is based on section 4 of said Act which, so far as appellant is concerned, is: . . . "It shall be unlawful for any person . . . to . . . deliver any intoxicating liquor to any other person . . . in this State." The second count avers that on April 26, 1914, appellant, in said State and county, "did unlawfully deliver to Bill Young intoxicating liquor in violation of said law," etc. Each count is drawn in accordance with the two articles of said statute as shown. Sections 7 to 11, inclusive, make various exceptions which would prevent the alleged acts from being unlawful. Section 12 provides that it shall not be necessary in any prosecution under this Act to negative the exceptions herein made, but the same shall be available to defendant as purely defensive matters. We, therefore, do not consider the question with reference to these exceptions. The indictment did not have to negative them, but, as stated by the law, they are purely defensive matters.
After indictment found this court, by no habeas corpus proceedings, can prevent the lower court and the jury from trying the case on its merits so far as the facts are concerned. Under such circumstances this court can only determine in this habeas corpus proceeding whether or not the said Act of the Legislature is constitutional, and the indictment charges an offense thereunder. If unconstitutional and void because thereof, this court could give relief by discharging appellant; but if the Act is constitutional, then this court has no power or authority to prevent the lower court from trying the case on its merits.
Appellant attacks said Act as unconstitutional on various grounds. We think it unnecessary to state them. In our opinion the Act is clearly constitutional, and the indictment charges an offense under the Act.
The judgment is affirmed.
Affirmed.