By his motion for rehearing appellant again presents some of the questions decided against him in the original opinion herein.
Among others, he contends that the Act under which he was prosecuted in this case is unconstitutional, because in violation of that provision of our Bill of Rights, section 9, providing that "the people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches" . . . He cites only Ex parte Gould, 60 Tex.Crim. Rep., to sustain his contention. In the dissenting opinion herein only, that case and Ex parte Conrades, 85 S.W. Rep., 150 and State ex, rel. v. Ryan, 182 Mo., 349, are cited to support such contention.
In order that the question may be better understood it is proper to show something of the history of this legislation and of the times and circumstances surrounding it.
The Act under which this prosecution was had in chapter 15, pp. 33-4, of the Act of the Thirty-First Legislature, approved August 19, *Page 345 1910. That Act itself, as is shown by it, was an amendment of and in lieu of the Act of the Twenty-Ninth Legislature, approved April 18, 1905, pp. 379 to 381. In section 4 of the 1905 Act, the Legislature states this: "The fact that the offices of express companies and other common carriers in prohibition counties and districts are constantly filled with intoxicating liquors which are kept there indefinitely, awaiting the convenience of the consignee thereof, and the fact that the will of the people isthereby thwarted and the local option laws of this State arethereby, to a great extent, made ineffective, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended." . . . This is but the briefest statement of the current history of this State at that time. As a matter of fact, the express companies and the agents thereof in all the prohibition territory of this State, and the liquor dealers whom they served, had become really liquor dealers in prohibition territory, defying and setting at naught the prohibition laws of this State to such an extent as to become a stench in the nostrils of all lawabiding and order loving citizens, whether they were in favor of or against prohibition. As stated in section 4 of said legislative act, it thereupon created anemergency and became an imperative public necessity, not only that the Act of 1905, should be enacted, but that even the constitutional rule requiring bills to be read on three several days be suspended in order to pass an Act to remedy the crying evil.
By August 19, 1910, the Legislature, finding some deficiency in the 1905 Act, and in order to still further remedy the said crying evil, in the last section of the 1910 Act amending the 1905 Act, stated therein "the fact that there is now no adequate law requiring express companies, railroad companies, or other common carriers, to keep a book containing the transaction pertaining to the receipt, shipment and transportation and delivery of intoxicating liquor into prohibition, territory, to be open to public inspection, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be and the same is hereby suspended," . . . These two emergency clauses to these two several Acts and the known public evil made it imperative for the Legislature to enact the amended Act of 1910. In order that its provisions may be fully seen, we will here quote the provision of that Act:
"Section 1. Each and every person in this State, who shall place or have placed any package or parcel, of whatever nature, containing any intoxicating liquor, with any express company, railroad company or other common carrier, for shipment or transportation to any point in any county, justice precinct, school district, city or town or subdivision of a county within this State, where the sale of intoxicating liquors has been or may hereafter be prohibited under the laws of this State, shall first place in a conspicuous place, in plain letters, on such package or parcel the words: `Intoxicating liquor,' the character and *Page 346 quantity of such intoxicating liquor, the place from where shipped, the place of destination and the names of the consignor and the consignee; and no express company, railroad company or other common carrier, or any agent thereof, in this State, shall accept or receive from any person, firm or corporation for shipment or transportation, to any such point where the sale of intoxicating liquors has been or may hereafter be prohibited, under the laws of this State, any such package or parcel; unless the same shall have been labeled in the manner and form as hereinbefore in this section required, and no express company, railroad company or other common carrier, or any agent thereof, in this State, shall deliver such package or parcel to any other than the consignee in person. Any agent of such express company, railroad company or other common carrier having the custody of any book or books required by this Act of such express company, railroad company or other common carrier, to be kept, shall at the request of any person, at any reasonable time during office hours, produce such book or books for inspection by any officer of the law or any member of the grand jury.
"Any agent of any express company, railroad company or other common carrier, or any other person, who shall violate any of the provisions of this section of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00), and shall be punished by imprisonment in the county jail for any term not less than twenty nor more than sixty days.
"Section 2. When any express company, railroad company or other common carrier, within this State, shall receive any package or parcel of whatsoever nature, whether from a point within or without this State, containing any intoxicating liquor, for transportation to any point within any county, justice precinct, school district, city or town or subdivision of a county where the sale of intoxicating liquors has been prohibited under the laws of this State, such express company, railroad company or other common carrier shall forthwith transport such intoxicating liquor to the place of its destination, and upon the arrival of same at its place of destination, there shall be entered in a book to be kept for that purpose the names of the consignor and the consignee, the exact time of the arrival of such package or parcel at the place of its destination, the place from where shipped, the quantity and character of such intoxicating liquor, as shown on such package or parcel, the exact time delivered to the consignee, if delivered, and the signature of such consignee, who shall sign in person for same before delivery thereof, and such book shall be open at all reasonable hours for inspection by any officer of the law or any member of the grand jury. If such package or parcel be not called for and taken away by the consignee and all charges thereon, if any, paid by such consignee, it shall be the duty of such express company, railroad company or other common carrier to start such package or parcel in transit *Page 347 back to the consignor thereof within seven days from the time of its arrival at the place of its designation, and the consignor shall be liable to such express company, railroad company, or other common carrier for the express or freight charges in transportation and returning same. Any express company, railroad company or other common carrier, violating any of the provisions of this chapter shall be liable to a penalty of one hundred dollars ($100.00) for each infraction thereof, to be recovered in the name of the State of Texas in any court of competent jurisdiction in any county where such express company, railroad company or other common carriers have an office or an agent or a line of railway; and each day that such intoxicating liquor shall be kept at the place of its destination after the expiration of seven days from the time of its arrival shall be deemed a separate infraction."
By section 2 of this Act it will be seen that it was thereby made the duty of the express companies in receiving shipments of intoxicating liquor to be delivered in prohibition territory to keep a book and therein enter the names of the consignor and the consignee, the exact time of the arrival of such package or parcel at the place of its destination, the place from where shipped, the quantity and character of such intoxicating liquors as shown on such package or parcel, the exact time delivered to the consignee, if delivered, and the signature of such consignee who is required to sign in person before its delivery, "and suchbook shall be open at all reasonable hours for inspection by anyofficer of the law or any member of the grand jury." It will also be seen by the first paragraph of section I that it was the duty of the agent of such express company to produce such book for inspection by any officer of the law or any member of the grand jury upon the request of any person at any reasonable time during office hours and in case he failed or refused to do so, upon conviction, he was to be fined not less than $25 nor more than $100 and by imprisonment in the jail not less than twenty nor more than sixty days.
That all this Act was clearly within the police power of the State, there can be no doubt whatever. No respectable authority, text-book or decision of any court can be found to gainsay it. The Supreme Court of Massachusetts, in Commonwealth v. Intoxicating Liquors, 172 Mass. 314, said:
"Subject to the power of Congress over foreign and interstate commerce, the right of a State to regulate by reasonable laws the manufacture, sale, or transportation of spirituous or intoxicating liquors within its own territorial limits is established by numerous decisions, both of State and national courts. Such a law is not inconsistent either with the Constitution of our State or that of the United States. It comes well within the authority called the police power, subject to which, in various ways, all private property is held, and it is unnecessary to restate here the principles upon which it rests. Commonwealth v. Blackington, 24 Pick. 352; Commonwealth v. Kendall, 12 Cush., 414; Commonwealth v. Clapp, 5 Gray, 97; Commonwealth v. Williams, *Page 348 6 Gray, 1; Commonwealth v. Bennett, 108 Mass. 27; Commonwealth v. Intoxicating Liquors, 115 Mass. 153; Commonwealth v. Ducey,126 Mass. 269; Beer Co. v. Massachusetts, 97 U.S. 25; License Cases, 5 How., 504; Leisy v. Hardin, 135 U.S. 100; Carstairs v. O'Donnell, 154 Mass. 357; Mugler v. Kansas, 123 U.S. 623, and cases therein cited." It is needless to cite other authorities from our own State, the decisions of any other State, or of the United States on this subject.
As we read and understand the case of Ex parte Gould,60 Tex. Crim. 442, it does not sustain appellant's contention. What was the Gould case and what did it hold? In that case the grand jury of Callahan County issued a subpoena duces tecum to require the telegraph company to produce before it "all telegrams sent from the office at Baird, ordering intoxicating liquors; it did not specify whether the liquors ordered were unlawfully sent for; it said all intoxicating liquors . . . The demand made upon the witness was unreasonable and unwarranted; it was too general; it did not relate to any crime committed, nor to any person accused or suspected; it was not directed to the inquiry into any crime; it failed to show the purposes for which the telegrams were demanded, and was but a prying and fishing expedition that can not be authorized by law." The court further in that opinion said: "It will be noted that these subpoenaes do call for messages within a specified time, but do not name the parties who sent the messages, and it was a very general sweeping order." Thereupon this court in that case, because of the generality and lack of description of the messages held that the witness was not in contempt of court in not obeying said subpoena.
But the court in that case held: "We think it clear that telegraphic messages in the possession of officers of the company are not privileged communications and their production can be compelled as other writings. National Bank v. National Bank, 7 W. Va. 544; Scott Jarn. on Tel., section 378, note; United States v. Babcock, 3 Dill, C.C., 566; Ex parte Brown, 72 Mo., 83. The agent of a telegraph company may, therefore, be compelled by proper process to produce such message before the grand jury, and no rule of the company can excuse him from liability to punishment for refusal so to do." In this case the express company by the law was required to keep a certain book in which it was to record certain and specific facts; that book — not any or all of its other books — by the express provisions of the law, "shall be open at all reasonable hours for inspection by any officer of the law or any member of the grand jury." Unquestionably the Legislature in the exercise of its police power in the regulation of the sale and transportation of intoxicating liquor had the power and the authority to so enact.
The case of Ex parte Conrades, 85 S.W. Rep., 150, as we read and understand it, does not sustain appellant's contention. The syllabi, *Page 349 which is a fair statement of what is held by the court in the case, is as follows:
"1. A resolution by a municipal house of delegates authorizing the appointment of a committee to investigate reported violations of ordinances imposing merchants' and manufacturers' license taxes, and empowering the committee to `subpoena witnesses and send for persons and papers,' gave the committee power to issue a subpoena duces tecum to compel the production of the books of a manufacturing company liable to a license tax.
"2. Under St. Louis City Charter, article 3, section 31, giving the municipal assembly power to compel the attendance of witnesses and production of papers relating to any subject in which the interests of the city are involved, the assembly is authorized, in investigating the question of the city's revenues and the reported evasion of merchants' and manufacturers' license taxes, to compel the production of books of a manufacturing company liable to a license tax.
"3. One attached for contempt in refusing to produce books and papers required by a committee of a municipal assembly is not entitled to release on habeas corpus on the ground that the documents required would criminate him, where no such claim was made at the time he refused to produce them, and it did not appear from their character that they would have this effect.
"4. An order of a municipal assembly, made in the exercise of its charter powers requiring the production before it of books of a corporation in aid of investigations as to evasions of license taxes by corporations, is nor a violation of the constitutional guaranty against searches and seizures." See also Robison v. Haug, 71. Mich., 38; People v. Shuler, 136 Mich. 165.
As we understand the case of State ex rel. v. Ryan, 182 Mo., 349, has no application to the question in this case.
By the Act of our Twentieth Legislature, March 30, 1887, which was amended by the Act of 1903, page 56, every person selling intoxicating liquors upon prescriptions in prohibition territory, was required to cancel each prescription on which a sale was made, and file it away and on the first day of July, 1903, and every month thereafter, he was required to file such prescriptions with the clerk of the District Court, accompanied by his affidavit stating that such person had sold no intoxicating liquor other than that named in such filled prescriptions and it required the said clerk to preserve said papers for three years and that they were "subject to theinspection of the grand jury, district, county and precinctofficers." Penal Code, article 598. The next article of the Code made it an offense for anyone to fail to make such sworn report and subjected such person to a fine of not less than $25 nor more than $100. Under these articles of our Code, Tom Holland was prosecuted and convicted for his failure to make such sworn report. This court in an opinion by Presiding Judge Davidson in *Page 350 Holland v. State, 51 Tex.Crim. Rep., sustained the constitutionality of that Act and affirmed the judgment against Holand.
As early as 1866, our Legislature, in order to prevent cattle theft and to detect and convict for such theft, required every butcher, when buying an animal for slaughter to take a bill of sale or written transfer from the person selling the same and not only made it an offense where he failed to take such bill of sale or written transfer (Penal Code, article 1361) but also required him, under oath, to report to the Commissioners' Court of his county at each of its sessions the number, color, age, sex, marks and brands of every animal slaughtered by him since the last term of such court and to accompany such report with such bill of sale or written conveyance to him of every animal slaughtered and in case he failed to make such report, he thereby committed an offense and was subject to a fine of not less than $50 nor more than $300. Convictions under this law and the constitutionality thereof have uniformly been sustained by this court. Dreyer v. State, 10 Texas Crim. App., 97; Aston v. State, 27 Texas Crim. App., 574; Bruns v. State, 33 Tex.Crim. Rep..
Again, by this same Act of 1866, amended later, every butcher who failed to keep a true and faithful record in a book kept for that purpose, of cattle purchased and slaughtered by him, together with a description of each animal including color, brand, age, weight and from whom purchased, and the date of the purchase, was subject to a fine of not less than $20 nor more than $200; and it was expressly provided that such book "shall beopen to the inspection of all parties," and where he failed to permit such inspection of such book at any reasonable hours, upon conviction he was subject to a fine not exceeding $25. These provisions of this Act have uniformly and continuously been acted upon by the butchers of this State. No one has ever attacked in any way the validity of these acts on any constitutional ground.
Again, our law for many years has required every person under certain circumstances to permit an inspection thereof by the cattle inspector to determine whether they are infected with any disease or ticks, etc. Our law has also required the owners of stock to permit them inspected for certain quarantine purposes. All these laws have been uniformly observed by our citizens and have not been attacked as invalid on any constitutional grounds.
The United States Constitution has substantially the same provision against unreasonable seizures and searches as our Constitution on that subject. It has been the daily practice in every part of the United States where persons or property arrive from a foreign country for the inspection officers without the aid of any court whatever to not only inspect every particle of the baggage and property of such persons before permitting them to enter anywhere in the United States, but also to search the person, and, if need be, require to some extent at least, a disrobing of the person. That such search does not violate *Page 351 the Constitution of the United States is without question. Such has been the practice uniformly and continuously from day to day since the foundation of our government. No one questions the validity of such search, both of person and of property. If any person should fail or refuse, upon demand of the inspection officer, to furnish the key to his trunk or other receptacle containing his property, or baggage, the officer unhesitatingly by force opens it and examines such property.
Every Legislature of our State which has passed any of our State laws on the subject mentioned above and the Legislature which passed this Act in discussion in this case, had many members both of the House and of the Senate, who were able and eminent lawyers and whether they were lawyers or not, they were intelligent, patriotic and competent citizens of our State, representing the people from every section thereof. They each took the same oath of office to support our Constitution that the members of this court takes. Each Governor of the State, with possible exceptions, since the foundation of our State have been eminent and able lawyers. They too took the same oath to support our Constitution that the judges of this court takes and every Act of our Legislature on the subject above mentioned and the particular Act in question in this case, were approved by the respective Governors, under their official oaths, as being constitutional. So that as to this Act and the others we have two of the independent co-ordinate branches of the government, under their official oaths passing upon this Act of the Legislature as valid and not unconstitutional. This, of course, would not prevent this court from also passing on such constitutionality but should and does have its weight. The universal rule by all the courts is, that no Act of the Legislature should be declared unconstitutional, unless it is without doubt, and clearly so.
It is not every search that our Constitution inhibits. It is only unreasonable searches. In our opinion that provision of our Bill of Rights, prohibiting unreasonable seizures and searches, if it has any application whatever to the statute in question in this case, has, in no way, been violated and said Act of the Legislature is, in our opinion, in every way valid and constitutional.
The Legislature of Michigan passed this Act: "Every druggist keeping a drugstore in any county adopting prohibition under this Act shall make and swear to, or cause to be made and sworn to, a true written or printed statement, signed and duly sworn to by himself or his clerk, on Monday of each and every week, giving the full name and residence of every person procuring liquor at his drugstore during the last week, the kind and quantity of liquor procured, and the date of procuring the same, and the object for which each purchase was made, and on such Mondays shall deliver or mail, prepaying the postage thereon, the same to the prosecuting attorney of the county where such store is situated, who shall preserve the same in his office; and all such statements shall be open to inspection to all citizens." *Page 352
The Supreme Court of that State, in People v. Henwood,123 Mich. 317, sustained the constitutionality of that Act wherein it was attacked as being unconstitutional because in contravention of the article of the Constitution of that State against unreasonable searches and seizures which was in substance, if not in exact words, the same as our Bill of Rights on that subject. And also sustained it against an attack of the constitutional provision, which is in substance the same as ours, that no person shall be compelled in a criminal case to be a witness against himself, nor deprived of life, liberty or property without due process of law.
In the State ex rel. Braden v. Chamberlain, 74 Iowa 266, the Supreme Court sustained the validity of an Act of the Legislature of that State requiring everyone, holding a permit to manufacture or sell intoxicating liquor, to return at stated periods under oath, a report of the persons to whom sale had been made for the preceding period, stating in the opinion: "It is evident that the making of a return after the date fixed by statute, would constitute no defense to this action. It is the purpose of the statute to secure the making of prompt and accurate returns as an inducement to comply with the law in regard to the sale of intoxicating liquors and as a means of enforcing it."
In the said case of Commonwealth v. Intoxicating Liquors,172 Mass. 311, a statute requiring all liquors shipped into dry territory to be carried by regular carriers in packages plainly marked with the consignor and consignee's name and address plainly marked thereon, and also with the name of the liquor marked in plain letters thereon; and also requiring the carriers to keep a record of such packages carried, under a penalty of a forfeiture of the liquor for failure, was held constitutional as being within the valid exercise of the police power of the State.
In the case of the State v. Smith, 74 Iowa 580, the Supreme Court of that State, held valid the Act of the Legislature requiring registered pharmacists, holding a permit authorizing him to sell intoxicating liquors, to make monthly reports thereof; and also held in that case that such reports could be introduced against them in a prosecution for violation of that Act.
In the case of Stephens v. State, 139 S.W. 1146, in a prosecution against the sale of intoxicating liquors in prohibition territory, this court held that the said book required to be kept under the Act in question made said book "atleast a quasi public record."
By the Act of April 3, 1891, creating the Railroad Commission of this State and defining its powers and duties, among other things, was expressly enacted that the Railroad Commissioners or either of them, or any such persons as they might employ therefor, "shall have the right at such times as they may deem necessary to inspect the books and papers of any railroad company and to examine under oath any officer, agent or employe of such railroad in relation to the business and affairs of the same." And not only made it a penalty against the *Page 353 railroad of not less than $125 nor more than $500 for each day it should fail or refuse to permit such examination, etc., but in addition, made it an offense punishable by fine of not less than $125 and not to exceed $500 for any officer, agent or employe to fail or refuse to exhibit to the Commissioners, etc., any book or paper of such railroad company in his possession or control. So far as we are advised that Act has never been attacked as unconstitutional or otherwise invalid, but has all the time been acted upon by the Railroad Commissioners, and all the books of the companies examined by the Commissioners or either of them, or by any one else directed by them, or under their authority, at any and all times at the pleasure of said Commissioners, or either of them. No railroad company, so far as we are advised, although generally represented by what are regarded as the ablest attorneys of this State, and who seem at all times disposed to contest the validity to the utmost of every provision of law which attempts, as they think, to interfere with their business or permit any other to examine into their books or papers or affairs, has at any time attacked this provision of the law.
The statement in the dissenting opinion that "it appears from the record that the court was not present any more during the trial of the case," after he had retired to prepare his charge the second time, as shown by the original opinion herein, is not borne out by the record, but the reverse of this is shown. The record does not expressly show the exact time he returned with his charge, but from all the facts stated in the record it is perfectly clear that he was out preparing his charge in this case only a comparatively short time and that he returned to the courtroom, proceeded to deliver to the jury his written charge and that the jury retired with it and afterwards returned into open court the verdict herein rendered. The judge at no time andin no way abandoned or dissolved the court. As stated in the original opinion, we do not sanction but condemn even the temporary absence from the courtroom of the judge pending a trial, but where, as in this case, as well as those cited in the original opinion, no possible injury occurred to the appellant and none could have occurred to him, such temporary absence of the judge in no way was cause for reversal.
We think it could not seriously be contended that the letter the appellant himself wrote to the sheriff the next day after he had committed the offense could be introduced in evidence. It would certainly be subversive of all rules of evidence if an appellant could manufacture testimony in this way for himself, after the commission of an offense. Selfserving declarations as well as selfserving letters by an accused are never admissible when not res gestae, and there is no intimation from any source that this letter was res gestae. Besides, as stated in the original opinion, the substantial contents of the letter was shown without objection and the fact that the appellant had written the letter was also shown without question. Even if the letter *Page 354 itself had been admitted it could not and would not have proven any additional fact that was not proven and established without contradiction.
Neither can it be seriously contended, as we apprehend, that after the unquestioned commission of the offense by the appellant on one day, because he repented the next and was then willing to comply with the law and might not again commit the offense of refusing to let the officers see the book, can be any possible defense to his unquestioned commission of the offense the day before. If this were the case every person, after the complete commission of an offense one day, might repent the next and by his repentance and offer to comply with the law thereafter, be entitled to an acquittal of the offense already committed. No such doctrine can be maintained in any court. At most, such matters might be an appeal to executive clemency. This court can not pardon offenses. That power is exclusively in another coordinate branch of this government, the executive.
It is unnecessary to discuss again any of the other questions raised on this appeal as they were all properly disposed of after full consideration by the original opinion.
The motion for rehearing is overruled.
Overruled.