The correctness of the conclusion expressed in the original opinion is assailed upon the proposition that in the offense under consideration the element of knowledge is not involved. The statute in force supplants an older one in which knowledge was expressly made an element. See Art. 430, Acts of 1895; Teague v. State, 25 Texas Crim. App., 577. The omission of this element in the new statute, Article 704, Penal Code, implies an intent that in future prosecution it should not be incumbent upon the State to allege or prove guilty knowledge with reference to the affirmative acts prohibited. This principle would go in the enforcement of this law to the same extent that it does with reference to other statutes in which the elements of intent or guilty knowledge are absent. In the construction of the statutes of this character, i.e., those in which neither guilty knowledge nor intent were made by statute essential elements, the American courts have expressed divergent views. See Wharton's Crim. Law. Vol. 1, Sec. 112. The rule in Texas has been affected by Article 46 and 47 of the Penal Code also. In Article 46 it is provided:
"No mistake of law excuses one committing an offense; but, if a person laboring under a mistake, as to a particular fact, shall do an act which would otherwise be criminal, he is guilty of no offense." and Article 47 is as follows:
"The mistake as to fact which will excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense."
Our statute on bigamy is one in which the elements of guilty knowledge and intent were omitted, but it has been held since an early date that the statutes quoted above were to be considered in a prosecution for this offense, and would the mistake appearing have the effect of relieving the offender from the criminal consequences of the unlawful marriage. Watson v. State, 13 Texas Crim. App., 76; Alonzo v. State, 15 Texas Crim. App., 378; Hildreth v. State, 19 Texas Crim. App., 195.
A similar ruling was applied to the statute prohibiting one from allowing a minor to remain in a pool hall. See Article 1053, Penal Code; Simpson v. State, 58 Tex.Crim. Rep.. For other examples see Vernon's Texas Penal Code, Vol. 1, p. 26, notably among them being numerous cases applying the rule to the sale of intoxicating liquors under a mistake of fact. See Reed v. State, 53 Tex.Crim. Rep.; Covington v. State, 51 Tex. Crim. 48; Patrick v. State, 45 Tex.Crim. Rep.. *Page 259
Many cases in other states are available in which in the enforcement of the Pure Food regulations the absence of knowledge on the part of offender has been held no defense. See ruling Case Law, Vol. 11, p. 1128. In others a contrary rule has been applied; Hunter v. State, 73 American Decisions, 164.
The punishment of one for an offense when he is able to show that the act was done without guilty knowledge or intent is contrary to the general principles of criminal law. Wharton's Crim. Law, p. 141. To this principle our courts have adhered when their action was a departure from the rule prevailing in some of the other states. See Wharton's Crim. Law, Sec. 108; and the statutes mentioned, Arts. 46 and 47, give legislative emphasis to this rule. One of the sections of the statutes under consideration, Section 708, is susceptible of the construction that the Legislature intended to exempt from punishment one who committed an act violative of the statutes without knowledge. This provision provides that no dealer shall be prosecuted who can establish a guaranty signed by the jobber or manufacturer, whether in this State or another, that the article in question is not adulterated. We are unable to conclude that in enacting the Pure Food statute, the legislature intended to repeal Arts. 46 and 47 supra. At the time it was enacted there were many criminal statutes in force, some of which have been adverted to, in which guilty knowledge was not made an element of the offense, and these statutes, as above pointed out, notably in the intoxicating liquor statute, have been construed by the courts as not repealing the statutes recognizing a mistake of fact as a defense. The general and well recognized rule, that in the enactment of statutes the previous construction by the courts of laws similarly framed, is presumed to have been adopted in the absence of some declaration showing a contrary intent.
It is our opinion, therefore, that in the administration of the statute in question the defensive theory of mistake as set out in the articles of the statute mentioned is available. We find nothing in the case of Ex parte Drane, 80 Tex.Crim. Rep., 191 S.W. Rep., 1157, opposed to this view. The evidence in the instant case, presenting the theory of want of knowledge and of the absence of facts from which knowledge would be inferred, raised an issue which the appellant, prosecuted for a criminal offense, was entitled to have the jury determine.
The rehearing is denied.
Overruled. *Page 260