On a former day of this term the judgment herein was affirmed. Appellant has filed a motion for rehearing, and insists that the court erred in holding the indictment valid, and that it was not necessary to negative the exceptions further than was done, and has filed an exhaustive brief. In addition thereto an able oral argument was made, and we have given the question careful and painstaking investigation, inasmuch as our eminent presiding judge holds to a different view.
Appellant criticises the original opinion in upholding the opinion of this court in the Mizell case, 59 Tex. Crim. 226, 128 S.W. Rep., 127, and says that the question here involved was not raised *Page 391 in the Mizell case, but that it was involved in the Keith case, 58 Tex.Crim. Rep., 126 S.W. Rep., 569, and that this court held it necessary to negative the exceptions in the statute. If there be a conflict in the decisions of the court in these two cases, we might merely say that the Mizell case was rendered later, and by the same judges that rendered the opinion in the Keith case, and if either overruled the other, the Mizell case overruled the Keith case. But it is not necessary to so hold as the indictment in this case contains the exception that the Keith case says it should contain, in that it says the sale was made "in violation of said law," which words are equivalent to the words in the statute and in the Keith case. However, we want to be frank enough to say, that we disagree with the holding in the Keith case, and to hold that it is only necessary to negative an averment in the statute where it is descriptive of the offense, regardless of in what portion of the statute the exception may be contained. We believe under mature reflection that was the holding of the court in the Mizell case, and it was intended to be so announced. It is folly to contend that the court did not view the indictment from every viewpoint, and pass on the question of the validity of this indictment from every point that could be raised. It has been the holding of this court in an unbroken line of decisions, that if the indictment is defective, this court will reverse and dismiss the case, wherever and whenever raised, or whether raised or not by the appellant. In the case of Maddox v. State, 14 Texas Crim. App., 447, it was held by Judge Hurt, that "the indictment being fatally insufficient, we will not permit it to stand, though urged by defendant to do so." We have too high an opinion of the eminent judges who rendered the opinion in the Mizell case to think they would commend a form of indictment to the court and prosecuting officers had they not maturely considered it from every possible viewpoint, whether raised or not, and a careful study of the authorities has convinced us they were right in so holding.
The other criticism of the opinion in appellant's brief we do not care to notice, but will proceed with the only question in the case: Is it necessary to allege the exceptions under which intoxicating liquors may be sold under the statute, and if so, is the allegation "in violation of said law" a sufficient negation?
Appellant quotes from the case of United States v. Cook,84 U.S. 168, and we want to say that we agree to the holdings of the court in that case. It is held:
"Commentators and judges have sometimes been led into error by supposing that the words `enacting clause,' as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is, whether the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the *Page 392 description of the acts, omission or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it can not be omitted in the pleading; but if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is matter of defense and must be shown by the other party, though it be in the same section or even in the succeeding sentence, citing 2 Lead. Cr. Cas., 2d ed., 12; Vavasour v. Ormrod, 9 Dowl. Ryl., 597; Spieres v. Parker, 1 T.R., 141; Com. v. Bean, 14 Gray, 52; 1 Stark Cr. Pl., 246."
Again, in Com. v. Hart, 11 Cush., 130, it is held: "Text writers and courts of justice have sometimes said that if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception, but where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defense and must be shown by the accused. Undoubtedly that rule will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a universal criterion, as the words of the statute defining the offense may be so entirely separable from the exception that all the ingredients constituting the offense may be accurately and clearly alleged without any reference to the exception." And this rule is adopted by Judge Hurt in the opinion cited in the original opinion in this case.
The Act in question reads as follows: "If any person shall engage in or pursue the occupation or business of selling intoxicating liquors (except as permitted by law) in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this State, he or she shall be punished by confinement in the penitentiary not less than two nor more than five years."
The fact that the exception is also in the caption is immaterial under all the cases, but the exception being in the body of the Act, it becomes material whether or not the exception is descriptive of the offense. Were we to be hypercritical we might hold that the exception is not in the enacting clause. In section 29 of article 3 of the Constitution of this State it is provided: "The enacting clause of all laws shall be, `Be it enacted by the Legislature of the State of Texas,'" but this is not the definition given in speaking of the "enacting clause" by our courts. The enacting clause is that part of a statute in which the offense is defined, and those who have the opinion that it refers or relates to the "caption" of the Act have a misconception of the term, as we would have if we took only the literal definition given in the Constitution.
In the article above quoted it will be noted that the offense defined and made penal is that of pursuing the business or occupation of selling intoxicating liquors in territory in which the sale of intoxicating *Page 393 liquors has been prohibited (except as permitted by law), and we find the exceptions in a separate and distinct article of the Penal Code, being article 403.
For a single sale of intoxicating liquors in violation of the local option law it has always been held that the indictment need not negative the exceptions contained in this article of the Code, although they are exceptions under which a sale of intoxicating liquors can be made, it being held they are not descriptive of the offense, but are matters of defense. (See Wade v. State, 53 Tex.Crim. Rep.; Chapman v. State,37 Tex. Crim. 167; Gilbert v. State, 32 Tex.Crim. Rep.; Bruce v. State, 36 Tex.Crim. Rep.; Perkins v. State,34 Tex. Crim. 429; Shields v. State, 38 Tex. Crim. 252; Frickie v. State, 39 Tex.Crim. Rep.; Barker v. State, 47 S.W. Rep., 980; Racer v. State, 73 S.W. Rep., 968; Zollicopper v. State, 38 S.W. Rep., 775; Loveless v. State, 49 S.W., Rep., 601; Green v. State, decided at this term of the court, and authorities cited in these opinions.)
Now we are asked, although it has been held unnecessary to negative the exceptions in making a sale in an unbroken line of authorities, to hold that it is necessary to negative these exceptions for pursuing the business or occupation of making a sale, simply because in the body of the Act the words "except as permitted by law" are used, and to hold that it is descriptive of the offense. Unless it is descriptive of the offense, the authorities quoted by appellant will be found, upon analysis, to hold that it is not necessary to negative the exceptions. Such has been the holding of this court in the past, and in the case of Commonwealth v. Jennings, 121 Mass. 47, it is held:
"On the other hand, it appears to us to be established, by a great preponderance of authority, that, when an exception is notstated in the enacting clause otherwise than by merely referringto other provisions of the statute, it need not be negatived, unless necessary to a complete definition of the offense.
"By St. 27 Eliz. c. 2, sec. 2, it was enacted that it should not be lawful for any Jesuit or other priest, born in England, and ordained or professed since the beginning of the reign by any authority derived from the See of Rome, to come into or remain in the realm after forty days from the end of the then session of Parliament, `other than in such special cases, and upon such special occasions only, and for such time only, as is expressed in this Act,' upon the penalty of being adjudged and punished for high treason. By subsequent sections, it was provided that the Act should not extend to any who should, within a certain time specified, submit themselves and take the oath of supremacy, or who should be too ill to depart out of the realm. It was resolved by Chief Justice Popham and other judges, `that the better course was to omit this in the indictment, notwithstanding it be comprised in the body of the Act, in the same manner as if it had been only *Page 394 in a proviso; in which case it is to the prisoner to help him by means of such a proviso, if he can do it; for the words "other than," etc., are but as referring to the provisions subsequent in the statute, in which case this matter shall be used but as the proviso itself shall be.' Southwell's case, Pop. 93.
"Under the St. of 22 Geo. III. c. 84, the enacting clause of which prohibited other persons than the scavenger from carrying away dust in a certain parish, `except in the place hereinafter mentioned,' which were specified in subsequent sections of the Act, it was held that, in an action for a violation of the statute, these exceptions need not be negatived. Ward v. Bird, 2 Chit. 582.
"So in Hart v. Cleis, 8 Johns, 40, it was held that, in an action for a penalty under a section which prohibited the exportation of slaves, `except as hereinafter provided,' the plaintiff need not negative the proviso of a succeeding section, which allowed persons traveling through or removing from the State to take their slaves with them.
"Our own St. of 1852, c. 322, sec. 1, enacted that no person should be allowed to sell any spirituous or intoxicating liquors, `except as is hereinafter provided.' Section 7 provided that if any person should sell any spirituous or intoxicating liquors `in violation of the provisions of this Act,' he should be punished by fine or imprisonment. In prosecuting for this penalty, it was held to be unnecessary to negative the exceptions which were stated in subsequent sections of the statute. Commonwealth v. Tuttle, 12 Cush. 502. Like decisions were made in Commonwealth v. Hill, 5 Grat., 682, and in State v. Miller, 24 Conn. 522. See alsa United States v. Cook, 17 Wall., 168, 173-176?
Again in State v. Ah Chew, 16 New, 50, it is held: "There are cases cited in Wharton's Cr. L. secs. 378, 379, where the language employed would seem, at first blush, to sustain the position contended for by appellant. But from a careful examination of all the authorities upon this subject, we are of opinion that it is only necessary in an indictment for a statutory offense, to negative an exception to the statute, when that exception is such as to render the negative of it an essential part of the definition or description of the offense charged. It is the nature of the exception, and not its locality, that determines the question whether it should be stated in the indictment or not. The question is, as stated in State v. Abbey, `whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner.' `It is the nature of the exception, and not its location,' which determines the question. Neither does the question depend upon any distinction between the words `provided' or `except' as they may be used in the statute." (See also Metzker v. People, 14 Ill. 101 *Page 395 ; Stanglein v. State, 17 Ohio St. 453; State v. Miller,24 Conn. 522; State v. McGlynn, 34 N.H. 422; State v. Wade, Id., 495.)
In Territory v. Burns, 6 Mont. 74, it is held: "It is a rule of pleading in criminal law that the indictment should set forth all that is necessary to constitute a complete description of the offense charged. This is especially true of statutory offenses, which is the character of the misdemeanor alleged in the above indictment. The indictment in such case should state all the ingredients of which the offense charged is constituted as contained in the statute which declares and defines such offense. When that is done, the prosecution has set forth a prima facie case, which is all that the law requires.
"When an exception is stated in the statute, it is not necessary to negative such exception unless it is a constituent part of the definition of the offense. The exception must be a constituent or an ingredient of the offense declared by the statute, in order to require that it shall be negatived by the indictment. It would appear to have formerly been the rule, that, `if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.'
"But however correct or otherwise this view may be, the current of authority now is that it makes no difference in what part of the statute the exception may appear; whether in what is commonly called the enacting clause or not. The criterion which determines the necessity to negative such exception is that it be a constituent or ingredient of the offense. In other words, that such exception is necessary to its complete definition. When the exception is not a part of the definition of the offense, and in this way does not, therefore, become a part of the enacting clause, it is a matter of defense. The enacting clause of a statute is not necessarily alone, or only that which purports to be such, but comprehends every part of the statute which should be stated in order to define the offense with clearness and certainty. When this view of what constitutes the enacting clause is considered, it will be seen that the rule in relation to what should be set forth in indictments for statutory crimes has been uniform. The exception contained in the above statute is not a part of the definition of the offense." United States v. Cook, 17 Wall., 168; State of Nevada v. Ah Chew, 16 Nev. 50; Territory v. Scott, 2 Dakota, 212; State v. Robey, 8 Nev. 312; People v. Nugent, 4 Cal. 341; Foster v. People, 1 Col., 294; Commonwealth v. Hart, 11 Cush., 130; Commonwealth v. Jennings, 121 Mass. 47; Commonwealth v. Byrnes, 126 Id., 248; Commonwealth v. McClanahan, 2 Met. (Ky.), 8; Fleming v. People, 27 N.Y. 329.
In Stanglein v. State, 17 Ohio St. 453, it is held: "A negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment, unless the matter of such exception or *Page 396 proviso enter into and become a part of the description of the offense or a qualification of the language defining it."
In State v. Dry Fork Railroad Co., 50 W. Va. 235, in discussing this question, it is held: "The better rule, however, is that no matter whether the exception or proviso is in the enacting clause or not, if it is not a part of the description of the offense in the statute, it need not be negatived in the indictment,' citing 10 Enc. of Pl. Prac., 495.
In Kitchens v. State, 116 Ga. 847, it is held: "Where a statute provides in general terms that the commission of a given act by any person shall constitute a penal offense, and then provides that the law thus framed shall not apply to a given class of persons, it is not necessary that an indictment based upon the statute should aver that the accused does not belong to the class of persons thus excepted from the operation of the law."
In Gee Wo v. State, 36 Neb., 241, it is said: "From an examination of all the cases the true rule appears to be a negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment or information, unless the matter of such exception or proviso enters into or becomes a part of the description of the offense, or a qualification of the language defining it."
In Villines v. State, 96 Tenn. 141, it is held: "Whether an indictment shall negative a proviso contained in the statute creating an offense depends not upon the place that the proviso or exception occupies in the statute, but rather its relation to that clause of the statute defining the offense. . . . If the proviso is so expressed in the statute as to be incorporated in the definition of the offense, the indictment must negative the proviso, otherwise it need not be done, although the proviso may be contained in the section that defines the offense."
And the rule is tersely stated in section 238 of Wharton's Pleading and Practice, "Unless the proviso is so expressed in the statute as to be incorporated in the definition of the offense, it is not necessary to state in the indictment that the defendant does not come within the exception."
In the case of State v. O'Donnell, 10 R.I. 472, it is said: "Much confusion has been caused by using the phrases, `enacting clauses,' `purview,' `proviso,' and `exception,' in different senses. The case of State v. Abbey, 29 Ver., 60, contains the most sensible remarks on these rules we have seen — `The rule is founded on the general principle that the indictment must contain the statement of those facts which constitute an offense under the statute.' A prima facie case must be stated, and matter of excuse must be shown by the defendant. `The question is whether the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offense.' It is the nature of the exception and not its location which is incorporated." *Page 397
And in State v. Rush, 13 R.I. 198, it is held: "What exceptions in a penal statute are to be negatived in pleading, and what are merely matters of defense, was quite fully considered by this court in O'Donnell's case. The conclusion there reached was that, the question was to be determined by their nature, and not their location with reference to the enacting clause."
The same rule is announced in the case of State v. O'Gorman, 68 Mo., 179.
In Commonwealth v. McClanahan, 59 Ky. 8, it is held: "Nor is it necessary to allege that he is not within such proviso even though the purview should expressly notice them, as by saying none shall do the act prohibited, except in the cases thereinafter excepted," citing Wharton's Criminal Law, 190; 2 Yeiger, 233; Commonwealth v. Young, 7 Monroe, 1.
In vol. 8, notes on U.S. Reports, it is stated: "The following cases, considering indictments on statutes with exceptions, cite the rule with approval, and hold in accordance therewith, that the exception need not be negatived: Nelson v. United States, 12 Sawy., 285, 30 Fed., 116, and Shelp v. United States, 81 Fed., 694, 48 C.S. App., 379, collecting cases, prohibiting sale of liquor, except for medicinal purposes, is good; United States v. Cook, 13 Sawy., 496, 36 Fed., 897, prohibiting the fencing public lands unless defendant was claiming title in good faith; United States v. Stone, 49 Fed., 850, prohibiting the cutting of timber on public land, unless justified under various land laws; Packer v. People, 26 Colo. 306, 57 P. 1087, statute of limitation need not be negatived; Territory v. Scott, 2 Dak., 212,6 N.W. 437, 438, holding an indictment sufficient without negativing any instance in which act was allowed; Baeumel v. State, 26 Fla. 71, 75, 7 So. 372, 373, collecting cases, prohibiting sale of liquors, except by a druggist; State v. Van Vliet, 92 Iowa 476,61 N.W. 241, collecting cases, under a general prohibitory liquor law, with exceptions as to certain localities, this need not be negatived; Nesbit v. State, 7 Kan. App. 298,54 P. 328, Sunday law, prohibiting work, except certain callings; Commonwealth v. Jennings, 121 Mass. 52, 23 Am. Rep., 253, indictment for polygamy need not negative the absence of first spouse for seven years; Thompson v. State, 54 Miss. 740, similar to cited case; State v. Bockstruck, 136 Mo., 335, 38 S.W. 320, prohibiting coloring of oleomargarine, except for export; State v. Elam, 21 Mo. App., 291, prohibiting sale of liquor, except for sacramental purposes; Territory v. Burns, 6 Mont. 72, 9 P. 434, collecting cases, prohibiting concealed weapons, except to peace offiers; United States v. Fuller, 5 N.M. 80, 20 P. 177, indictment for embezzlement need not negative a proviso that it was not delivered to addressee; Villines v. State, 96 Tenn. 141,33 S.W. 923, 924, prohibiting druggist from selling without register, unless a physician; Mosely v. State, 18 Texas App., 311, Sunday law, prohibiting sales, except burial material and provisions, before 9 a.m.; State v. Bevins, 70 Vt. 574, *Page 398 41 A. 656, statute requiring license from peddlers, except where they sell from own land, Miller v. Shields, 124 Ind. 166, holding where a feme covert can not be a surety, it is not necessary to negative this in a suit upon a note; Rowell v. Janvrin, 151 N.Y. 60, holding suit to enforce stockholders' liability for debts need not negative exceptions, which excuse them, collecting cases."
Able counsel for appellant pay high tribute to Justice O.M. Roberts, in which we cordially join, but the construction they place on the opinion of Judge Roberts in the Hewitt case,25 Tex. 722, is not a correct construction, as will be seen by reading the opinion in full. In that case it is held:
"If there was a general prohibition against selling liquors less than a quart, or if the Legislature have the power to withdraw the protection from liquor as property, and prohibit its sale entirely, and in any quantity, and had clearly done so by direct enactment, then these words would charge an act to have been done, which, by law, is declared to be an offense. . . . The act of sale coupled with the omission, and not the act of sale by itself, constitute that which, by law is declared to be an offense (under the statute in question in that case). The gist of the offense is the omission.
To this holding we give our assent. Whenever the omission or exception is the gist of the offense, it must be negatived in the indictment. Our prohibition, or local option statutes, when the people adopt them in a given territory, prohibit the sale of intoxicating liquors in any quantity in that territory, and this court has universally held that the exceptions need not be stated in the order declaring the result. Chapman v. State,37 Tex. Crim. 167; Gilbert v. State, 32 Tex.Crim. Rep.; and in the case of Ex parte Perkins, 34 Tex.Crim. Rep., Judge Davidson, speaking for the court, says: "It was not necessary to set out the exceptions in regard to the sales of intoxicating liquors in the order declaring the result of the local option election, and prohibiting the sale of such intoxicants in the given territory. The law makes these exceptions whether included in the order or not."
In Shields v. State, 38 Tex.Crim. Rep., it is held that the order for the election need not notice the exceptions. (Loveless v. State, 49 S.W. Rep., 601; Frickie v. State,39 Tex. Crim. 254.)
We have already given the authorities that the indictment charges a sale, without negativing the exceptions, in the beginning of this opinion.
The exceptions are not part of the offense, and are not necessary in defining the offense — the offense is pursuing the business of selling intoxicating liquors in a territory where it is prohibited; in the language of Judge Roberts, "the prohibition is general, and applies to the sale of liquors in any quantities." That a different article permits a sale to be made for sacramental purposes, or in cases of *Page 399 sickness, on the prescription of a physician, does not make such matters a part of the definition of the offense.
Again, the case of Duke v. State, 42 Tex. 455, is referred to as supporting the contention of appellant, but a careful reading of that case will show that it supports the holding of this court in this case. In that case, in holding that it was necessary to negative the exception contained in that statute, the court says: "The Legislature has not attempted to make the carrying of a pistol an offense. The enacting clause itself excepts certain officers in actual service, and any one having reasonable ground to fear attack. Tested by the rule above stated, the indictment is defective. But in truth, not only are these exceptionsdescriptive of theoffense, but the provisos, not perhaps embraced in the enacting clause, are equally parts of that description. If the latter could be regarded as properly provisos, the place they occupy would make it unnecessary to negative them. But in truth, they are all, those introduced by the word unless, and those by the word provided, in legal effect qualifications of the enacting clause. It is only by virtue of them that the Actbecomes a regulation instead of a prohibition." And it was held necessary to negative the exceptions in that statute because it was said the exceptions "being essential parts of the description of the offense."
In this case we are not dealing with the regulation of the sale of liquors, but the prohibition of the sale, and the fact that under a given condition an isolated sale may be made, does not render it a part of the definition of the offense. In each case cited by appellant, (if the article being construed is considered) it will be seen that it is only where the exception is a part of the definition of the offense, has it ever been held that it is necessary to negative the exceptions. While at times some loose expressions may have been used, but the real holding in each case has been that where the exception is not part of the description of the offense, it need not be negatived in the indictment.
In Brown v. State, 9 Texas Crim. App., 171, Judge Clark says: "The rules of pleading do not require that such exceptions be negatived in the indictment, (speaking of a statute) as they do not constitute a part of the description of the offense."
These are the leading cases relied on by appellant in his able and extended brief, and we have shown wherein we think they do not support his contention, but are authority for the holding in this case, and each case cited could be taken up and distinguished, and shown not to support the contention of appellant, but to hold and to hold only, that an indictment must charge the elements of an offense, and all such parts of the law as are descriptive of the offense. To this we agree, but as the exceptions in this case form no part of the offense, and are not descriptive of the offense, the motion for a rehearing is overruled.
We have given to this question much thought and study, have read *Page 400 the authorities from almost every state in the Union, and some English authorities, as will be seen by the citations herein, for the reason we wish to announce a correct rule of pleading, and we hold that it is immaterial in what part of a statute an exception appears, if it is a part of the definition of an offense, or descriptive of an offense, the exception must be negatived in the indictment; but if it is not a part of the offense, nor descriptive of the offense, it is likewise immaterial in what part of the statute the exception appears, it need not be negatived in the indictment. This conclusion, we believe, is supported by the great weight of authority. The contention that the words "except as permitted by law," appearing in the body of the Act, renders them descriptive of the offense, is not supported by sound logic or reason, and is not supported by the authorities of this State. We would call especial attention to the case of Commonwealth v. Jennings, 121 Mass. 51, herein quoted from, and the other authorities herein quoted and cited.
The motion for rehearing is overruled.
Overruled.
Prendergast, Judge. — I concur.