The substance of the evidence shows that appellant owned a saloon and restaurant, both situated in the same building — the saloon counter on one side and the restaurant counter on the other. At the back end of the lunch counter there was an ice-box, in which beer was stored. Appellant had a bill of fare, and at the bottom was the following: "Anything to drink free: coffee, milk, tea, beer, wine, etc." The lunches served, the witnesses swear, were worth the price asked for each lunch. Some of the witnesses bought a 15 cent lunch, and some 5 cent lunch, and with each lunch procured a bottle or glass of beer. The prosecution was for selling the beer on Sunday. On the Sunday alleged in the indictment, various parties went into the saloon or restaurant, and made purchases, and with each lunch, as stated, a bottle or glass of beer was furnished free. The case was tried before a jury, and the court, among others gave this instruction: That if the beer was sold, to find defendant guilty. "On the other hand, you are charged that it is not an offense against the laws of the State of Texas for any person to give away beer to any one on Sunday; and if you believe from the evidence that defendant gave one bottle of beer, to R.J. Roark, on May 29, 1904, you will find the defendant not guilty." The majority of the court hold that the facts do not show a sale, but a gift. The mere fact that the witnesses swear and the bill of fare states that the beer was free, would not render it any the less a part of the consideration for the purchase of the lunch, and hence I cannot agree that the facts stated do not constitute a sale. If the jury had believed appellant's testimony, under the charge above quoted, they could have found defendant not guilty. But for this court to say that the facts do not show a sale, places it within the power of a restaurant keeper to sell whisky or beer under the guise of running a restaurant. In contemplation of law the moment defendant offers on his bill of fare to give beer with each lunch purchased, this forms part and parcel of the consideration for the purchase of the lunch, and being a part of the same, constitutes in law a sale of the beer. To say otherwise, would be to hold that parties could make a direct sale, and call it a gift, and yet could not be prosecuted at all for the sale, simply because he called the sale a gift. If the opinion of the majority is the law, appellant can run a restaurant and sell whisky or beer, under the facts stated, or give it away, as he *Page 203 contends, in a local option district, without prescription, since the majority hold that the facts above stated do not constitute a sale, but a gift. It is no offense, under the decisions of this court, to give away whisky or her in a local option or non-local option district. Again, if appellant is not guilty of the sale of beer under the facts above, then he could continue running his restaurant under such circumstances, without procuring any license to sell intoxicants, and under the guise of a restaurant license sell whisky and the State would be impotent to enforce the license law upon him, for retailing spirituous, vinous and malt liquors. Since the court holds that the facts do not constitute a sale, and there is no license required for giving away intoxicants, the facts showing a gift he would not be required to get a license to sell intoxicants. So, in the view I take of the facts the decision abrogates not only the Sunday law, but the saloon license law and the local option law.
Article 9 of the Penal Code provides: "Every law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. And no person shall be punished for an offense which is not made penal by the plain import of the words of a law." Article 200, Penal Code, exempts, among others, "keepers of drug-stores, hotels, boarding houses, restaurants, livery-stables, bath houses, ice dealers or telegraph or telephone offices," from the provisions of article 199, which inhibits the sale of commodities on Sunday. A restaurant is defined by Webster to be an eating house, and such it has always been construed under the law (7 Words and Phrases, p. 6181); and not where intoxicants under a subterfuge are dispensed under the guise of running a restaurant. A restaurant keeper, in contemplation of law, is not a saloon keeper. Nor is it in contemplation of law that a restaurant keeper shall sell beer and whisky. If so, there would evidently have been a tax placed upon running a restaurant similar to the tax imposed by the Legislature upon a saloon. It follows, that when the Legislature authorized a restaurant keeper to sell food on Sunday, it was not within contemplation of the Legislature that such restaurant keeper should sell beer or whisky. The mere fact that he says he gave the beer away, when he offered the beer free to his customers if they bought a lunch, does not render it any the less a sale, because the beer becomes a part of the consideration for the purchase. Being such it is a sale, and is directly inhibited by the Sunday law. No such construction has ever been placed upon this article before; no saloon has ever attempted in Texas, so far as the writer knows, to evade the provisions of the Sunday law in the manner indicated by this record. I take it that the facts show a gross subterfuge; that the jury have properly found appellant guilty, and the facts, instead of presenting the issue of a gift, almost, if not quite exclude such an issue as a question of fact. The jury were more *Page 204 than warranted in finding the verdict they did. However, the learned trial court did submit the question to the jury as to whether or not it was a sale; and the jury have decided it was. I do not think this court is warranted in holding that the above stated facts do not constitute a sale. If the facts do not make out a sale, then all that is necessary, in order to dispense intoxicants on Sunday, would be for the restaurant keeper to sell certain viands, and then give, as he would term it, whisky or beer free. This character of transaction, under the opinion of the majority, would exempt him from a prosecution for the sale of the whisky; would exempt him from paying the license tax for the sale of intoxicants; would exempt him from a violation of the local option law: and all that he would be required to do, would be to pay an occupation tax to run a restaurant, and then he is exempt from any species of prosecution by the subterfuge he has resorted to. Therefore, I cannot agree to a reversal of this case, because it destroys each and every one of the statutes above referred to; and so believing I file this my dissenting opinion.