Article 110 of the Penal Code provides as follows: “ Any person who shall pursue or follow any occupation, calling, or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes so due, and not more than double that sum.”
The act of March 11,1881 (Acts Seventeenth Legislature, chap. 34, p. 21), imposes upon persons engaged in the business of selling spirituous liquors in quantities less than one quart, an annual tax of three hundred dollars, and empowers the commissioners’ court of each county to levy and collect from such persons one-half the amount of the tax levied by the State. (Secs. 1 and 2 of the act.)
The defendant was prosecuted for a violation of Article 110 of the Penal Code, above quoted, and was convicted and fined four hundred and fifty dollars. It was proved that he was an employe of the Pullman Palace Car Company; that he had charge of a palace car belonging to the company, which car was used for transporting passengers over the line of railroad, and in this car such passengers were furnished with sleeping accommodations, and with food and drink. In this car there was a small bar supplied with spirituous liquors, and such liquors were sold from this bar to passengers calling for them. The defendant sold two drinks from this bar to two of the passengers on the car, while it was in Wood county, at the price of twenty cents for each drink. It was not proved or attempted to be proved that the defendant, or his employer, the Pullman Palace Car *42Company, had paid the occupation tax levied upon retail liquor dealers. It sufficiently appears from the evidence that the business of retailing spirituous liquors was being engaged in by the defendant, upon the car, and that such business had, for some time prior thereto, been carried on in this State, and elsewhere, upon the cars of the company while in transit.
It has been ably and ingeniously argued by counsel for appellant that it is no violation of law to engage in the business of retailing spirituous liquors upon these cars while in transit, without paying the tax, etc. They argue that the business of retailing liquors upon these cars to the passengers on the cars, is not within the mischief intended to be prevented by the Legislature, and is not within the spirit and intent of the law, although it may come within the express letter of the law. We think it is clearly within the letter of the law, and we can see no good reason why we should not hold it to be within the spirit and intent of the law.
The law is operative throughout the limits of the State, and operates upon all alike. It makes no distinction between- persons, whether they be traveling or stationary, whether they be the owners or conductors of a palace car, or the driver of a hack or other vehicle. Whenever one of these palace cars crosses the line into this State it is within the jurisdiction of the laws of this State, and all persons who are transported by it are subject to -those laws, and as much bound to obey them as any citizen of the State. We could elaborate our views upon this question, and advance many and cogent reasons for holding as we do, but we think it sufficient for us to say that neither the letter nor the spirit of the law exempts the Pullman Palace Oar Company, or any other corporation or person, from its operation,—and that it is as much a violation of law to engage in the business of retailing spirituous liquors, without paying the occupation tax, upon a car traveling over a railroad, as it is to carry on that business in the usual mode.
Appellant also claims that as he was only an employe of the Palace Car Company, who were the proprietors of the business, he is not subject to this prosecution. We think he was “a person engaged in the business,” in the meaning of the statute. To hold otherwise would render the law practically ineffectual in all cases where the proprietor or owner of such business was beyond the jurisdiction of the courts of this State, as in this case. A *43non-resident could, through agents and employes, violate this law with impunity.
Upon the trial in the court below, the court charged the jury, among other things, as follows: “If you believe from the evidence that the defendant is guilty of selling spirituous liquors in quantities less than a quart, in Wood county, as charged, you will find him guilty,” etc. This charge was excepted to by defendant at the time. We think the charge is erroneous. The offense charged in the information is that of “engaging in the business ” of selling spirituous liquors, etc. A person might be guilty of selling spirituous liquors, and yet not be engaging in that business within the meaning of this law. The charge made the guilt of the defendant depend upon the sale alone, when in fact it depended upon whether or not he had engaged in the business of selling, etc.
Another portion of the charge is as follows: “You will give the defendant the benefit of all reasonable doubt, and if you believe from the evidence that he is not guilty, you will so say by your verdict.” This was also excepted to by the defendant at the time it was given. This charge is incorrect. The jury are not required in any criminal case, in order to acquit a defendant, to believe that he is not guilty. To believe that he is not guilty is to believe that he is innocent. The correct rule is that the jury must presume the defendant to be innocent until his guilt has been established by legal evidence to the exclusion of any reasonable doubt. (Munden v. The State, 37 Texas, 353; Smith v. The State, 9 Texas Ct. App., 150; Robertson v. The State, Id., 209; Blocker v. The State, Id., 279; Wallace v. The State, Id., 299; Estep v. The State, Id., 370; Haynes v. The State, 10 Texas Ct. App., 480.)
These erroneous charges having been promptly excepted to at the time they were given, and being presented in this court by bill of exception, the law requires a reversal of the judgment: (Code Crim. Proc., Arts. 677-685.)
There are other questions presented in this case which we think are not of sufficient importance to be discussed. We have discovered no errors in the proceedings, except those above noticed in the charge of the court, and for which errors the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered October 18, 1882.