I have been unable to agree with my brethren in the affirmance of this case. The final disposition of the appeal has centered itself in the main question of the sufficiency of the indictment. My brethren have written much and cited many cases and quoted from many authorities to sustain the proposition that it is not necessary to negative the exemptions or exceptions in the enacting clause setting out the definitions of the offense. I might readily agree with them that it is immaterial in what part of the Act of the Legislature the ingredients or elements of the offense may be found. Wherever found they must be charged in the indictment, and where the exemptions or exception enters into or forms a part of the definition of the offense and exempts from punishment under other portions of the definition, it is under all the authorities, as I understand them, necessary to negative the exemptions or exceptions and the indictment must exclude from the operation of the law parties who come within the exemption or exception. In order to make the party liable under that state of case he must fall outside of and be excluded from the operation of the statute or rather the exemption. Many of the cases cited by my brethren have no application to the question at issue, and many of the cases have been diverted from their proper bearing in regard to the question decided in the cases, and carried over and made to apply to this question, to which they have no relation and upon which they have no bearing.
On the main question decided in the opinion on motion for rehearing Messrs. McGregor Gaines have filed such a full, elaborate, able *Page 401 and exhaustive opinion that I deem it unnecessary for me to further investigate that question or discuss it. I, therefore, content myself with adopting as my dissenting opinion the able brief filed by those gentlemen. It is a complete legal answer to the opinion of the majority. I therefore adopt their brief and argument as my dissenting opinion, which is as follows:
"In this case appellant relies on two propositions. One is that the indictment does not negative the exceptions in the statute; the other is that local option having been adopted in Comanche County before the law making it a felony to engage in the business of selling intoxicating liquor went into effect, this law can not apply to that county. We shall discuss in this brief the first of these propositions.
"Section 1 of the Act of 1909, chapter 15, 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, town or subdivision of a county in which the sale of intoxicating liquors 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 indictment follows the form copied in the Mizell case,59 Tex. Crim. 226, 128 S.W. Rep., 125, and after alleging the several orders by which local option was put in force in Comanche County, alleges certain sales `in violation of said law.' Other than what may be held to be in this phrase, there is no negation in the indictment of whatever exceptions are covered by the words of the statute `except as permitted by law.'
"The words `except as permitted by law' are in the enacting clause of the statute, are a part of the definition of the offense, so that one can not be read without the other, and are in their very nature and necessarily words of reference. For this reason appellant contends that the indictment must negative the exceptions permitted by the local option law as contained in article 403 of the Criminal Code and article 5060a of the Revised Statutes.
"The opinion of the majority of the court meets this proposition by holding, apparently, that it is not necessary to negative the exceptions of the statute at all. This position is as new as the arguments advanced in its support are novel in the jurisprudence of this State. It is not extravagant to say, as will appear in the progress of this argument, that not only in the judicial history of this State, but of all countries that speak the English language, it has been held by a clear and unbroken line of authority that where an exception is in the enacting clause of a statute, and is a part of the definition of the offense, so that one can not be read without the other, the indictment must negative the exception. Is this no longer the law? If not, by what authority has the law been changed?
"The opinion of the majority of the court is based upon the *Page 402 following propositions: 1st. That the indictment follows the form copied in the Mizell case and approved in the cases of Murphy, Sutphen and Payne, cited in the opinion. 2d. That article 452 of the Code of Criminal Procedure has dispensed with the necessity of negativing exceptions in prosecutions for the sale of intoxicating liquors. 3. That in any event, to refuse to follow the form in the Mizell case would result in great expense and great inconvenience and confusion to the prosecuting officers of the State. This is a fair analysis of the opinion. If these propositions are not sound, the opinion falls with them. It is our purpose to show not only that these propositions are not sound, but that no proposition in the opinion is supported by any of the authorities cited in support thereof, and that the weight of authority, so far as we are aware, all the authorities are squarely contrary to the several propositions laid down in the opinion of the majority of the court.
"First, as to the indictment following the form copied in the Mizell case. The answer to this is as brief as it is simple. This question was not involved in the Mizell case, and no case in which this question was raised has approved the form copied in the Mizell case as sufficient in this respect. The cases of Payne and Murphy cited in the opinion did not involve this question, and the Sutphen case, which is the only case involving this question since the Mizell case, cites the Mizell case, but it is cited on an entirely different question. Can the Mizell case be authority on an issue not even remotely involved in that case? Is any proposition in our law better established than this: That no case is authority upon an issue not raised or decided in that case?
"Next, on the proposition that article 452 of the Code of Criminal Procedure has dispensed with the necessity of negativing exceptions in all prosecutions for the sale of intoxicating liquors. Article 452 of the present Code of Criminal Procedure is section five of the `Common Sense' Indictment Act of March 26, 1881. The majority opinion says this Act has never been held unconstitutional. That in practical and legal effect it has been held unconstitutional has been the opinion of the bench and bar of this State for nearly thirty years. Technically speaking, the entire Act has not been held unconstitutional because the entire Act has never been before the court. But all of its provisions that have been before this court have been held unconstitutional, where they relieve the State from the necessity of alleging all the acts and omissions constituting the offense. That this very article 452 has by every principle of legal analogy been held unconstitutional we shall show in two ways:
"First, in the case of Hewitt v. State, 25 Tex. 722, the defendant was prosecuted for selling whisky without a license. The statute under which defendant was prosecuted read as follows:
"`If any person or firm shall sell or be in anywise concerned in selling spirituous, vinous or other intoxicating liquors in quantities *Page 403 less than one quart, without first having obtained a license therefor in the manner prescribed by this Act, he, she, or they shall be deemed guilty of a misdemeanor,' etc. The indictment failed to negative the exception involved in the expression`without first having obtained a license therefor.' The State sought to avoid the necessity of negativing the exception under the seventh section of the same Act, which read as follows: `In all prosecutions for any violation of any of the provisions of this Act, it shall be sufficient to allege and prove that the person charged with any such violation did sell, or was concerned in selling spirituous, vinous or intoxicating liquors; and it shall not be necessary to allege or prove the kind of liquor sold, the name of the person to whom the same was sold or that the same was sold without license. This Act shall, in all cases, be liberally and remedially construed.' Judge Roberts, than whom no greater ever sat upon the bench in this State, held this `liberal and remedial' statute unconstitutional, because it relieved the State from alleging that the whisky was sold`without having first obtained a license therefor,' as was provided in the enacting clause and definition of the offense. The analogy between the two cases, and between section 7 of the Act of February 7, 1856, and section 5 of the Act of March 26, 1881, is too apparent for comment. The Hewitt case has been followed and approved in the following cases: Wilburn v. State,25 Tex. 738; Horan v. State, 25 Texas Sup., 271; Duke v. State, 42 Tex. 455; Rice v. State,37 Tex. Crim. 36; Williamson v. State, 41 Tex. Crim. 464. Is that decision the law? If not, it should be overruled by this court; it has never been overruled before. If it is the law, it settles this case. It is held up before the court.
"Second. The effect of all the decisions on other sections of the `Common Sense' Indictment Act is to hold section 5 of that Act unconstitutional as well. Our Constitution, article 1, section 10, of the Bill of Rights provides: `In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him . . . . and no person shall be held to answer for a criminal offense unless on indictment of a grand jury;' and again in section 19 of the Bill of Rights it is provided that: `No person shall be deprived of life, liberty or property except by the due course of the law of the land.' We are aware that the crusaders of our time are wont to regard these provisions as meaningless platitudes, but it may be doubted if so many words ever written by the pen of man have cost humanity so much in blood and treasure, and they still stand as the bulwark of our liberties. What is the meaning of the words `nature and cause of the accusation against him' and of the word `indictment' as these terms stood interpreted at the time they were made a part of the organic law of this State?
"In the case of Williams v. State, 12 Texas Crim. App., 395, decided the year following the passage of Act of 1881, in passing on some of its provisions, Judge Willson said: `It is beyond the power *Page 404 of the Legislature to dispense with the statement in the indictment of that which is essential to the description of the offense. We think it is clear from these authorities that the meaning of the word `indictment' in the Bill of Rights requires that it should state the essential acts or omissions which constitute the offense with which the party is accused. It must charge explicitly all that is essential to constitute the offense, and can not be aided by intendment.' In the case of Hewitt v. State, above, Judge Roberts says: `The definition contained in our Code of Criminal Procedure is that "the indictment is the written statement of a grand jury accusing some person therein named of some act or omission which by law is declared to be an offense." At the adoption of our Constitution, and for a century previously, both in England and America, this is what was understood as constituting an indictment.' To the same effect are Huntsman v. State, 12 Texas Crim. App., 619; Rodriguez v. State, 12 Texas Crim. App., 552; Hodges v. State, 12 Texas Crim. App., 554; Allen v. State, 13 Texas Crim. App., 28; Insall v. State, 14 Texas Crim. App., 145; Caldwell v. State, 28 Texas Crim. App., 566; Horan v. State, 25 Texas Sup., 271, to which might be added others to the same effect almost without limit.
"The majority opinion cites vol. 22, page 286, of the Encyclopedia of Law, as authority for the proposition that the Legislature may pass a law dispensing with the necessity of negativing a statutory exception, but a study of the authorities cited in support of that text shows that they were either under constitutional provisions different from our own or were not in the enacting clause of the statute. Why cite the Encyclopedia of Law? The twelfth volume of our Criminal Reports is a text book to the contrary on that proposition, and the decisions in that and the following five volumes, holding that, notwithstanding the Act of March 26, 1881, the indictment must allege all the acts and omissions constituting the offense, would more than fill a volume of the Encyclopedia of Law, and these are decisions of this court on sections of this very Act, a court that was at the time the only court having exclusive criminal jurisdiction among English speaking peoples, and a court the decisions of which are conceded to be the greatest authority on criminal law in the world.
"We pass over the statement in the opinion of the majority of the court to the effect that whatever deficiencies may have existed in the Act of March 26, 1881, were cured by the fact that this section was reenacted in the codification of 1895, with the observation that the codification did not add any new vitality to Acts carried forward, but simply was a continuation of the original Act `with all its imperfections on its head.' Hartford Ins. Co. v. Walker, 94 Tex. 473; Fischer v. Simon, 95 Tex. 234 [95 Tex. 234]. Besides, the Legislature could have no more power in adopting the work of codifiers than it had in the passage of the original Act.
"It is said in the opinion that Judge Winkler, in White v. State, *Page 405 11 Texas Crim. App., 476, upheld article 452. A careful reading of that case will show the indictment in that case was for selling whisky without a license, and that the indictment negatived the exception, and was objected to on other grounds that would not have been valid even in the absence of article 452. The citing of that article in that opinion was superfluous. In view of the fact that Judge Roberts, in the Hewitt case, had previously held that an indictment under the same statute was defective because it failed to negative the exception, can it be supposed that Judge Winkler, who must have been familiar with the Hewitt case, intended to overrule the doctrine there announced?
"Again, the opinion cites the Williams case, 37 Tex. Crim. 238, in which Judge Hurt held that in prosecutions for violation of the local option law it is not necessary to negative the exceptions. But the reason is made plain by the decision itself and the distinction is apparent. In the local option statutes the exceptions are not a part of the enacting clause nor of the definition of the offense — in this statute it is. This court has held in the Fitch case, 58 Texas Crim Rep., 366,127 S.W. 1040, that the statute under which this defendant is prosecuted is a separate and distinct offense. But this very authority, in the Williams case, says: `Under well settled rules all the elements entering into the offense must be alleged in the indictment. The Legislature can not relieve the State of the necessity of so framing the indictment as to charge the accused with all the acts and intents which constitute offense.' What has been said of the Williams case above applies to the cases of Loveless and Malone cited in the opinion.
"The case of Dwyer v. State, 12 Texas Crim. App., 535, is cited by the majority as sustaining the Act of 1881, but in that opinion also it is apparent that the indictment, which was for murder, was sustained not because of or by virtue of the Act of 1881, but because independent of that Act, and under section 10 of the Bill of Rights the indictment charged all the elements of murder as that offense is defined by our statute. In other words, Judge Hurt holds that the form prescribed in that Act would be good without the Act, and is valid, not because it is so enacted by the Legislature, but because it charges all the elements of the offense. We quote from that opinion: `While we hold that several of the forms prescribed by that Act are insufficient and invalid because they do not set forth the acts, facts andomissions which constitute the offense they are intended to charge, we are of opinion that the form prescribed for murder is not subject to this objection. It is very brief, and yet we think it contains every essential fact and element constituting the crime of murder.'
"In the cases of Keith v. State, 58 Tex.Crim. Rep., 126 S.W. Rep., 569, and Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 144, this court, in passing upon this very question, has *Page 406 held that exceptions in the statute under which this defendant is prosecuted must be negatived. These holdings are not adverted to in the opinions of the majority. Are these authorities no longer the law? If not, they should be overruled or distinguished, because they stand as `precedents for the prosecuting officers of this State.'
"If then, article 452 of the Code of Criminal Procedure is unconstitutional, is the exception embodied in the words `except as permitted by law,' such a part of the definition of the offense that, under section 10 of the Bill of Rights, it is necessary to negative the exceptions referred to in these words?
"We lay down the broad and unqualified proposition that not only under section 10 of the Bill of Rights it has been the law of this State from the days of the Republic that where an exception is in the enacting clause of a statute and forms a part of the definition of the offense so that one can not be read without the other, it must be negatived in the indictment, but that this has been the well defined and unquestioned rule of law in both England and America as far back as there is any record of judicial decisions. This ought to be long enough to give it the force of authority. In support of this proposition we cite the following authorities: Vosmer v. Omrod, 9 Dowell Ryland, 599, by Tenterdon, C.J.; Steel v. Smith, 1 Barnwell Alderson, 94; The case of Spieres, 1 Term Repts., 141; King v. Earnshaw, 15 East., 456; Carle v. Parent, 5 Q.B., 451; Commonwealth v. Hart, 11 Cushing, 130; Chitty, 2 Gen. Prac., 166; State v. O'Donnell,10 R.I. 472; Bishop Cr. Proc., sec. 539; Keck v. U.S.,172 U.S. 434; Schooner Hoppet v. U.S., 7 Cranch, 389; Cook v. U.S., 17 Wallace, 168; State v. Hamlett (Mo.), 107 S.W. Rep., 1012; Bush v. Republic, 1 Tex. 454; Lewis v. State, 2 Texas Crim. App., 26; Archer v. State, 10 Texas Crim. App., 482; Huntsman v. State, 12 Texas Crim. App., 619; Blaisdell v. State, 5 Texas Crim. App., 263; Colchell v. State, 23 Texas Crim. App., 584; Rice v. State, 37 Tex.Crim. Rep.; Mosely v. State, 18 Texas Crim. App., 311; Williamson v. State, 55 S.W. Rep., 568; Salter v. State, 73 S.W. Rep., 395; Keith v. State, 58 Tex.Crim. Rep., 126 S.W. Rep., 569; Sutphen v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 144.
"The best statement of the rule that has ever been made is by Bayley, J., in the case of Steel v. Smith, 1 Barnwell Alderson, 94, which the United States Supreme Court says is the leading case on the subject, as follows: `When there is an exception so incorporated with the enacting clause that the one cannot be read without the other, then the exception must be negatived.' This is quoted with approval by Judge Henderson, in the Rice case,37 Tex. Crim. 36. Another way of stating the rule is that if the exception is a part of the definition and description of the offense it must be negatived without reference to its location in the Act or statute, and it is plain that under either of these ways of stating the principle the exception in *Page 407 the statute must be negatived, because it is certainly so incorporated with the enacting clause `that one can not be read without the other.' The very definition of the offense can not be read without reading the exception, nor can the offense possibly be defined without stating the exception. Let this be remembered: It is not a crime per se to sell intoxicating liquors in Texas, nor is the sale of intoxicating liquors a violation of law in any county in Texas, but only the sale of such liquors in certain places and with certain exceptions. It must be in local option territory; it must be without the prescription of a physician; without the license of a druggist, and not for sacramental purposes; and it is as necessary to allege these and each of them as it is to allege that it was in local option territory.
"As early as the year 1786, we find this doctrine clearly defined in the common law. In the case of Spieres, 1 Term Reports, the defendant was charged with `impressing mariners,' and the statute contained the exception, `unless such persons shall have before deserted from such ship of war.' In passing upon this question, Mansfield, J., `the greatest judge who ever sat upon the English bench,' says: `The first point is whether the exceptions contained in the enacting clause of a statute which creates an offense and gives a penalty must be negatived.' The pleader who drew this declaration was clearly of opinion that it was necessary, for he has negatived what he thought to be the exception, and he was right, for it is a settled distinction between a proviso in the description of the offense and a subsequent exemption from the penalty under certain circumstances. In the former the plaintiff must, as in actions upon the game law, aver a case which brings the defendant within the Act; therefore he must negative the exceptions in the enacting clause."
"Again, in the year 1812, in the case of The King v. Earnshaw, 15 East., 456, where the defendant was prosecuted for violation of the game laws and there were many exceptions in the statute, most of which the complainant negatived, Lord Ellenborough said: `It has been settled that all the qualifications for killing game must be specifically negatived, and that being so, there is no reason for dispensing with the terms in which they may be aptly and certainly negatived. Here one of the qualifications mentioned in the statute is omitted to be negatived, namely, that the defendant had an estate of inheritance of the annual value of £100 in right of his wife. We must presume therefore that it could not have been truly negatived. It is always safer in these cases to follow the words of the Act." In the last sentence above, the learned judge evidently means that the exceptions must be negatived in the language of the exceptions themselves, for in the same case, LeBlanc, J., says: "If it had been only alleged generally that the defendant was not qualified according to law, the conviction would have been clearly bad and we can not distinguish between a case where none of the exceptions are specifically negatived and where one of them only is omitted." *Page 408
"It is believed that all sound authority is uniform in support of the above proposition that it is necessary to negative an exception situated as this exception is, and it is also believed that all sound authority is equally uniform in holding that such words as `except as permitted by law' are words of reference and that they incorporate into the enacting clause the exceptions to which they refer, and that these exceptions so incorporated must be negatived in the language of the exceptions themselves or in the other language fully as broad.
"The principle is well stated by Metcalf, J., of the Supreme Court of Massachusetts, in the case of Commonwealth v. Hart, 11 Cushing, 130, `There is a middle class of cases, namely, where the exception is not in express terms introduced into the enacting clause, but only by reference to some subsequent or prior clause or to some other statute, as when the words "except as hereinafter mentioned," or other words referring to matter out of the enacting clause, are used. The rule in these cases is that all circumstances of exemption and modification, whether applying to the offense or to the person, which are incorporated by reference, with the enacting clause, must be distinctly negatived.'" This case is quoted in the Texas cases cited in our brief.
Chitty says (2 Gen. Prac., 166): "If the exception be in the enacting clause or in a proviso thereof, or even in any other clause that ought to be read as part thereof, although in a distinct section, then it must be negatived."
The case of the State v. O'Donnell, 10 Rhode Island, 472, is a very thorough analysis of this principle, and is frequently cited. In that case, section 1 of the Act forbade the sale of intoxicants, "except as hereinafter provided." Section 14 made it lawful for "town agents and persons who import said liquors in original packages" to sell. The indictment negatived all matters in section 1, but failed to negative the exceptions in section 14, and the court says: "The question is, whether the exception is incorporated into the enacting clause by words of reference? 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. 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 important."
"Mr. Bishop lays it down as a rule (Crim. Proc., sec. 539): `Where there is in the enacting clause a reference to an exception or a proviso more fully stated in a separate clause or statute, the indictment is required to negative it or not, according as the form of the expression and the nature of the matter render the latter an element in the prima facie offense or in the defense.' In other words, if it would be necessary to negative it if it were copied into the enacting clause, it would be equally necessary if it is referred to.
"In the case of Keck v. United States, 172 U.S. 434, the defendant *Page 409 was prosecuted for the violation of section 3082, of the United States Revised Statutes, which reads as follows: `If any person shall fraudulently or knowingly import or bring into the United States, or assist in doing so, any merchandise, contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment or sale of such merchandise after importation, knowing the same to have been imported contrary to law,' etc., and prescribing the penalty.
"The indictment charged that on the date named, `the said Keck did knowingly, wilfully and unlawfully import and bring into the United States, to wit, into the port of Philadelphia,' diamonds of a stated value, `contrary to law and the provisions of the Act of Congress in such cases made and provided, with the intent to defraud the United States.'
"Now the statute under which this `indictment is drawn reads: `If any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted bylaw,' etc., from which it is clear that the words of the Federal statute, `contrary to law' have the same meaning and relation to that offense as do the words `except as permitted by law' in our statute, and that the indictment in that case was in this particular as near like this indictment as one could hope to find, in that, in declaring under statutes similar in principle, the bill in that case uses the words `contrary to law,' whereas the bill in this case says `in violation of said law,' but if there is any difference it is in favor of the indictment in the Keck case, because it pursues the language of the statute.
"In passing upon this, the court says: `As is apparent, the alleged offense averred in this count was charged substantiallyin the words of the statute. In the argument at bar, counsel for the United States conceded the vagueness of the accusation thus made and tested by the principles laid down in U.S. v. Carroll,105 U.S. 611; U.S. v. Hess, 124 U.S. 483, and Evans v. U.S.,153 U.S. 584, the count was clearly insufficient. The allegations of the count were obviously too general and did not sufficiently inform the defendant of the nature of the accusation against him. The words "contrary to law" contained in the statuteclearly relate to legal provisions not found in section 3082 itself, but we look in vain in the count for any indication of what was relied on as violative of the statutory regulations concerning the importation of merchandise. The generic expression, "import and bring into the United States" did not convey the necessary information, because importing merchandise is not per se contrary to law and could only become so when done in violation of specific statutory requirements.' If the use of the words `contrary to law' is not a sufficient negative when these are the words of the statute, then by a stronger reason they could not be sufficient when they are neither the words of the statute nor their equivalent. The words of the statute, even, are not sufficient, and in support of this *Page 410 no stronger authority than the above could be desired. Also, the sale of whisky, like the importation of merchandise, is not an offense per se, but only when not permitted by law.
"In the year 1813 Chief Justice Marshall, in the case of the Schooner Hoppet v. United States, 7 Cranch, 389, touches the very heart of the issue: `It is not controverted that in all proceedings in courts of common law, either against the person or the thing, for penalties or forfeitures, the allegation that the act charged was committed in violation of law or of the provisions of a particular statute will not justify condemnationunless independent of this allegation a case be stated whichshows that the law has been violated. The reference to the statute may direct the attention of the court and of the accused to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offense. The importance of this principle to a fair administration of justice, to that certainty introduced and demanded by the free genius of our institutions in all prosecutions for offenses against the law, is too apparent to require elucidation, and the principle itself is too familiar not to suggest itself to every gentleman of the profession.'
"In the case of Steel v. Smith, 1 Barnwell Alderson, 94, which, as it has been observed, the U.S. Supreme Court, in the Cook case, 17 Wallace, says is the leading case upon the subject, the rule is thus laid down: `Where an Act of Parliament in the enacting clause creates an offense, and gives a penalty, and in the same section there follows a proviso containing an exemption which is not incorporated in the enacting clause by any words of reference, it is not necessary to negative such proviso, butwhere there is an exception so incorporated with the enacting clause the exception must be negatived.' From which it will be seen that words of reference put the exception in the enacting clause as though it were there copied in full.
"The same doctrine is approved and further expounded in the case of the U.S. v. Cook, above cited, where the court, in speaking of words of reference, says, `The exception itself is supposed to be incorporated in the general clause.'
"In the case of Hamlett v. State (Mo.), 107 S.W. 1012, the defendant was charged with pursuing the occupation of a druggist without being a registered pharmacist. Section 3036 of the Act prohibited the pursuit of the business `by any person not a registered pharmacist,' and concluded with the words `except as hereinafter provided.' Section 3045 denounced the offense in another phase `except as provided in section 3040.' The indictment negatived the exception in section 3036, in the following language: `Without then and there being a duly registered pharmacist and without having any legal authority to so compound, retail, dispense and sell said medicine and poisons.' The objection was that the indictment failed to negative the exceptions in the other sections alluded to by the language of the section under which the bill was drawn. The court says: `Plainly *Page 411 all the elements of the offense intended to be prohibited by said section can not be found in the section itself, for on its face it points to subsequent provisions which must be attended to in order to ascertain what the offense is. It is the contention of the State that inasmuch as the exception to the offense created by the section is contained in subsequent sections of the statute it was unnecessary to negative said exceptions in the indictment, and authorities are cited in support of this proposition. These decisions and many others say an indictment founded on one section of a statute need not negative an exception or provision contained in a subsequent section, but this rule can not be applied to an instance in which the section declared on in the indictment, instead of containing in itself a full definition of the crime prohibited, refers to a subsequent section for further information regarding it and other ingredients in it. In such an instance the subsequent exception or proviso is by reference made a part of the prior enacting clause. In other words, the subsequent clause or section becomes as much a part of the first one as if it had been incorporated with it in drawing thestatute.' Again, the court says: `Whether a statutory exception is contained in the enacting clause or in a subsequent section, it must be negatived if it is so interwoven with the clause defining the offense as to constitute a material part thereof and be one of the essential ingredients of the criminal act. Cases have arisen where the exception, though in a subsequent clause or section, was nevertheless so incorporated with the words previously employed in defining the offense as to render it impossible to frame the actual statutory charge in the indictment without alleging the accused was not within the exception contained in the subsequent clause, section or statute. The exception alluded to by section 3040 of the statute as incorporated into section 3036 by words of express reference constitutes an essential element of the offense created. . . . Section 3045 includes words of express reference to the exception in section 3040, and what we have said in regard to negativing the exception in section 3036 is just as applicable to one founded on section 3045.' Now, the words of reference in section 3045 are `except as provided in section 3040.' Do not the words of our statute, `except as permitted by law,' if they mean anything, necessarily refer to the exceptions in articles 403 and 5060a?
"If this court holds that the words of the statute, `except as permitted by law,' and the words of the indictment, `in violation of said law,' are equivalent to each other, then this holding establishes our proposition, because, in the case of Keck v. U.S., above, and many of the other cases cited, the very words, `contrary to law,' and `in violation of law,' when used in the enacting clause, have been held to be `words of reference,' and to refer to and incorporate the exceptions contained in another clause or section, and make it necessary to negative exceptions in the language of the exceptions or language fully as broad. In other words, if `except as permitted by law' is *Page 412 held to be equivalent to `in violation of said law,' or vice versa, the courts having so uniformly held that the words `in violation of law' are words of reference, is equivalent to holding that `except as permitted by law' are words of reference. If, on the contrary, this court holds that the words `in violation of said law' are not equivalent to `except as permitted by law,' then the indictment falls, because this court has twice held that this very exception must be negatived. Therefore under either construction, the indictment must fall, and there is no escape from one or the other of these constructions.
"The opinion of the majority of the court contains the following expression: `The prosecuting officers of this State thought, and had a right to think, that this court had given the question mature consideration before sending it forth with its commendation and approval. They have followed the advice given, in the main, and about all the cases coming to this court are written in this form. The State has been put to the expense of trials; a number of men are serving terms in the penitentiary under it, affirmed by this court; prosecutions are pending in many counties in Texas, and for the court to now change its views in so short a time would cause the citizenship of the State to lose confidence in its opinions, and would lead the legal profession to expressions of ridicule.'
"This is, perhaps, one of the most remarkable reasons ever given by a court for affirming a judgment in a criminal case. We submit it to the judgment of those who shall search for the law after the crusade of the hour has `gone glimmering through the dream of things that were,' that it means neither more nor less than this: Even if the form copied in the Mizell case is not the law, and has never been the law, on the questions raised, it is better, by affirming the judgment, to make it the law, for the sake of consistency. The effort to be consistent in error leads to endless confusion. As sure as the law is a system of pure reason, this holding of the court will meet the ghost of the past on this and kindred questions at every turn until it leads to confusion worse confounded. But this holding lacks even the virtue of consistency, and is, itself `the court changing its views in so short a time.' At this hour the ink is scarcely dry on the opinions in the Keith and Sutphen cases, holding that the indictment must negative the exceptions in this very statute, and written by the judges whose places are now occupied by the judges who write the majority opinion. Are we to expect the law to change with the personnel of the court? That no man is now serving a term in the penitentiary in a case where this question was raised is certain, because it has only been raised in the cases above named, and they were both reversed on that very question. But even if men were serving terms, the question was not raised in this court, and this court does not pass upon questions that are not raised. Besides, if the error remains and becomes engrafted upon the system of statutory construction employed by this court, extending to and poisoning the *Page 413 stream of legal lore as it spreads and sweeps onward, not only men now serving terms under a statute little more than a year old, but the many more in all the years that are to be will be the victims of this same error. The future is a longer time than since July 11, 1909. The greatest lawyer of the Romans said: `Not this present when I am, but that long time when I will not be moves me more,' and on this text George Eliot wrote her famous poem, `The Choir Invisible.' But it is said, `The State has been put to the expense of trials.' Let the mind review the history of what section 10 of the Bill of Rights has cost humanity, and then `the expense of trials' will not loom so large. All trials are expensive, but they are guaranteed by the Constitution and that they shall be `by the due course of the law of the land.' But it is also said that for the court to change its views `in so short a time would lead the legal profession to expressions of ridicule.' It is better to be right and be wrongfully ridiculed than to be wrong and be rightfully ridiculed.
"On the other proposition in the case, namely, that local option having been adopted in Comanche County before the felony statute took effect, that statute can not be operative in that county, we have simply to add that in our opinion the dissenting opinion of Judge Davidson in the Fitch case presents all that can be said on that proposition and that the arguments there presented are not answered, and `when the shouting and the tumult dies' the dissenting opinion ought to be held and will be the recognized law of the land."