McLaughlin v. State

ON APPELLANT’S motion for rehearing.

DAVIDSON, Judge.

Appellant insists that we erred in holding the facts sufficient to support the conviction.

*387We have again examined the facts in the light of the conclusion expressed and remain convinced of the correctness of our original holding.

The sufficiency of the evidence to support the conviction is presented upon other grounds.

The information, after alleging the facts showing the local option status of Taylor County and that appellant unlawfully possessed beer for the purpose of sale in that county, alleged these additional matters, viz.:

“said alcohol beverage not being of a type and alcoholic content that had been legalized by any valid local option election in said Taylor County, and the said Vernon McLaughlin not being then and there the holder of a medicinal permit, and not the holder of an industrial permit, in violation of said law in said Taylor County.”

These negative allegations were entirely unnecessary to the validity of the information. Baker v. State, 132 Tex. Cr. R. 527, 106 S. W. 2d 308.

These negatives were a part of Art. 666-4, Sec. (b), Vernon’s P. C., prior to the amendment of that article in 1937. They are not now, and have not been since the amendment, a part of or incorporated in said article.

There is no testimony supporting these allegations of the information. The question arises as to whether it was necessary for the state to establish same by the proof.

Under the Dean Law (Arts. 666-694, P. C.), which was repealed by the present Liquor Control Act, it was a felony to sell and possess.....intoxicating liquor. It was provided by statute (Art. 669, P. C.) that the sale or possession.....of liquor for medicinal, mechanical, scientific, or sacramental purposes was not unlawful.

We held that in prosecutions under those statutes, the state was not required to either allege or prove the exemptions mentioned. Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89; Hunter v. State, 96 Tex. Cr. R. 509, 257 S. W. 1104; Clark v. State, 111 Tex. Cr. R. 384, 12 S. W. 2d 792. The basis for such holding was that inasmuch as the purpose for which the accused sold or possessed the intoxicating liquor was entirely *388within his knowledge, the burden was upon him to prove legality thereof.

The negative allegations in the instant case that appellant was not the holder of a medicinal or industrial permit can not be said to be matters entirely or peculiarly within his knowledge. Medicinal and industrial permits are issued by duly constituted authority and are matters of record.

The fact, however, that appellant was not the holder of a medicinal or industrial permit constituted no defense to this prosecution. Here, the prosecution was for possessing beer for the purpose of sale in a dry area.

A medicinal permit authorizes the sale or possession of liquor only for medicinal purposes. Art. 666-15, Sec. (19), Vernon’s P. C. Liquor has an alcoholic content in excess of four per cent, by weight. Art. 666-3a, Sec. (5), Vernon’s P. C. Beer cannot contain more than four per cent, by weight. Art. 667-1, Sec. (b), Vernon’s P. C. It is apparent, therefore, that medicinal permits have no reference to, nor do they authorize the possession or sale of, beer for medicinal purposes.

Industrial permits authorize only the handling of alcohol (Art. 666-15, Sec. 11, Vernon’s P. C.). Therefore, an industrial permit has no reference to beer.

As thus construed, the allegations of the instant information that appellant was not the holder of a medicinal or industrial permit could be rejected as surplusage.

But such is not true of the other negative allegation of the information, which was that beer had not been “legalized by any valid local option election in said Taylor County.” The information having alleged the dry status of Taylor County by reason of the election and the resultant order and publication putting local option into effect, it was unnecessary to make the additional allegation that beer had not been legalized by an election in that county. Such allegation, however, constituted an additional allegation of the dry status of Taylor County, and therefore cannot be treated as surplusage. It becomes necessary, then, that such allegation be either sustained by the proof or proof thereof waived.

In the instant case there was no evidence introduced show*389ing the dry status of Taylor County. The parties, state and appellant, stipulated, out of the presence and hearing of the jury, that Taylor County was a dry area. Such stipulation was not made before the jury, whose duty it was to find the dry status of the county in order to convict. The trial court, however, charged the jury, as a matter of law, that Taylor County was a dry area. To such an instruction, no exception was reserved. The trial court, as a consequence of that stipulation, did not, in his charge, require the jury to find the dry status of Taylor County in order to convict the appellant, but did require an affirmative finding by the jury that “said alcoholic beverage (beer) being not of a type and alcoholic content that had been legalized by any valid local option election in said Taylor County.” There was no proof before the jury of such fact.

Taylor County being a dry area under the trial court’s instruction, it follows that no election could have been held legalizing beer in that county. Consequently, the stipulation of the dry status included, also, the fact that beer had not been legalized in the county. Therefore, a finding by the jury thereon was not necessary, in view of the stipulation.

In Baker v. State, supra, we approved a form of information deemed sufficient to charge violations of Art. 666-4, Sec. (b), Vernon’s P. C. May we again call attention to the advisability of the use of that form, or one similar thereto, in such prosecution, as well as the inadvisability of including in the information, as here, unnecessary allegations.

The other matters discussed in our original opinion have been examined again.

We remain convinced of the correctness of our original conclusion, and appellant’s motion for rehearing is overruled.

Opinion approved by the court.