ON STATE'S MOTION FOR REHEARING.
The original opinion in this cause is withdrawn and the following substituted in lieu thereof.
Appellant was convicted in the county court on a charge that he sold to W. A. Welch meat from the carcass of a horse as food for human consumption. The fine was $150.
Subsequent to the trial of the case, and prior to the date of the original opinion herein, the legislature enacted House Bill No. 17, Chapter 45, Acts of the Regular Session, 51st Legislature, which amended Chapter 339, Acts of the Regular Session of the 49th Legislature (1945), under which the prosecution was brought. It was the view of the court, on original submission, that the subsequent act so nullified the article under which the prosecution was had that the prosecution could not stand.
The state filed a motion for rehearing, and, with it, a very exhaustive brief on the subject. The question is not without its difficulties, but we have concluded that we were in error in the original opinion.
Under the general provisions of our Penal Code, Article 14 reads as follows: "The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute." *Page 551
As we viewed the legislation originally the language in the repealing statute was insufficient to "otherwise declare." We now call attention to Articles 15 and 16, reading as follows:
Art. 15: "When by the provisions of a repealing statute a new penalty is substituted for an offense punishable under the law repealed, such repealing statute shall not exempt from punishment a person who has offended against the repealing (repealed) law while it was in force, but in such case the rule prescribed in Article 13 shall govern."
Art. 16: "If an offense be defined by one law and by a subsequent law the definition of the offense is changed, no such change shall take effect as to the offenses already committed; but one accused of violating the first law shall be tried under that law."
The provision found in the Acts of the 51st Legislature, Chapter 45, relied upon by appellant is as follows: "Section 18 of Acts of the Forty-ninth Legislature, 1945, Page 554, Chapter 339, where in conflict herewith, is hereby expressly repealed to the extent of such conflict only." (Sec. 7, p. 79.)
While this act does not in an affirmative way provide for the continued prosecution under the amended article, we think it does so in a negative sense just as effectively and when construed with the general provisions of our statute, above quoted, which are not in any way affected by the Acts of the 51st Legislature, we must reach the conclusion that the prosecution in the instant case was in no sense affected. See Ash v. State, 114 S.W.2d 889, with authorities therein discussed.
It appears to the writer that the exact questions herein raised were discussed in Davis v. State, 142 Tex.Crim. R.,155 S.W.2d 801. The appellant there was convicted on a charge of driving on a public highway while intoxicated. Subsequent to his trial and conviction, and prior to the decision on his appeal to this court, Article 802 Vernon's Ann. P. C. was amended and, by this amendment, the offense was re-defined and a different penalty affixed. We held that the effect of the Act of the 47th Legislature, amending Article 802 P. C., did not relieve the appellant from prosecution under the amended article. A number of authorities are discussed, all of which seem to be consistent and sustain the state's contention in the instant case.
It is said in Bedwell v. State, 142 Tex.Crim. R.,155 S.W.2d 930, that the amendment discussed in the Davis case was an *Page 552 "amendment" and did not have the effect of repealing the former act, even though it defined the offense anew and prescribed a different penalty, and that Article 13 of the Penal Code authorizing prosecution under the pre-existing law controls. We think the reasoning is just as effective in the case now before us.
The brief filed by appellant in this case asks for reversal on three grounds: The insufficiency of the indictment; the invalidity of the statute, which is based on the ground that "no limits have been set up by the State Board of Health for the use of oxides of sulphur as delegated by Statute."; and the insufficiency of the evidence to sustain the conviction. We will discuss the bills of exception independent of the propositions in the brief.
Bills of Exception Nos. 1, 2, and 5 attack the indictment on the ground that it was not alleged that the defendant "knowingly and willfully" sold to W. A. Welch meat from the carcass of a horse. The statute did not provide that it must be "knowingly" sold. The language, Art. 719-d, Sec. 18, Vernon's Ann. P. C., is as follows: "It shall be unlawful to sell for food for human consumption meat from the carcass of horses, dogs, mules, donkeys, cats, or other animals not normally used for human food."
Bill of Exceptions No. 3 complains of the failure of the court to submit a charge on circumstantial evidence. Bill No. 4 is on the same subject and contains a special requested charge, which is required to raise the issue in misdemeanor cases. It may be pointed out that there are circumstances relied upon, but there is also direct evidence of the sale. As a consequence of which a charge on circumstantial evidence would not be required. Such is the consistent holding of this court.
Bill of Exceptions No. 6 brings forward appellant's motion for a new trial which, in the main, consists of the complaints set forth in the preceding bills of exception.
We have given careful consideration to all of the questions raised and are of the opinion that no reversible error is shown. The judgment of the trial court is affirmed.
ON APPELLANT'S MOTION FOR REHEARING.