(Dissenting on Motion for Rehearing).
In the motion for rehearing appellant earnestly insists that this court erred in holding that the complaint and information are sufficient to charge an offense against the law. My brethren have concluded the motion should be overruled. I regret that I am not in accord with their views.
Omitting the formal parts of the information, it is charged therein that: “In the County of Travis in the State of Texas, on or about the 13th day of September, A. D., 1942, one Goldie Anderson did then and there unlawfully, have possession of liquor for the purpose of sale in a wet area without first obtaining a permit contrary to the statutes in such cases made and provided and against the peace and dignity of the State.”
The article of the statute, Art. 666-4 (a) P. C. under which this prosecution proceeds is as follows: “(a) It shall be unlawful for any person to manufacture, distill, brew, sell, possess for the purpose of sale, import into this state, export from the state, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose of sale to bottle, rectify, blend, treat, fortify, mix or process any liquor in any wet area, without first having procured a permit.”
The only reasonable construction which may be given such statute is that an accused is doing the thing charged against him without a permit to do that particular thing; for instance, he is manufacturing without a permit to manufacture, or selling without a permit to sell. So the only reasonable construction which may be given the information here involved is that appellant possessed liquor for the purpose of sale without a permit to so possess it.
No provision is found in the Texas Liquor Control Act (Vernon’s Ann. Tex. P. C., Vol. 1) which authorizes the Liquor Control Board to issue, or which requires a person who possesses *228liquor in a wet area for the purpose of sale, to obtain a permit to so possess it; nor is there in said Act the amount of fee or tax to be charged for the issuance of a permit to possess liquor in a wet area for the purpose of sale, except a wholesale storage permit when he stores liquor in a public or private warehouse; nor is there any penalty prescribed for the failure to do so. It is true that a person who engages in the sale of liquor in a wet area must have a permit to sell liquor, and the sale of liquor without a permit in a wet area is a violation of the law for which a penalty is prescribed; and the fee for such a permit is also specified in the Texas Liquor Control Act. But the mere possession of liquor in a wet area for the purpose of sale at some time in the future does not require any permit. It is only when he engages in the sale thereof that he is required to have a permit. Consequently, it is not an offense under the Texas Liquor Control Act to possess liquor in a wet area for the purpose of sale without a permit. The gist of the offense lies not in the possession of the liquor for the purpose of sale in a wet area but in the sale thereof, and until a sale of liquor has been made in a wet area without a permit no offense has been committed against the laws of the State. If a conviction is sought because a sale was made, then the complaint and information should so charge. If a person sells liquor in a wet area without first having obtained a permit he has violated the law, but the complaint and information in such a case should so charge the facts to be.
Article 3 of the Penal Code requires, among other things, that “no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this State.”
I believe the motion for rehearing should be granted, the order of affirmance set aside, the judgment of the trial court should be reversed and the prosecution ordered dismissed.