This appellant was convicted of the offense of pursuing the occupation of a retail liquor dealer without first obtaining a license therefor. The act of 1893, (Penal Code, Art. 411a), requires those who propose to pursue the selling of spirituous, vinous, or malt liquors, or medicated bitters, to obtain a license. Counsel for appellant contends that it is no offense against the laws of this State to sell medicated bitters without license, because not taxed. Act 1893, p. 178, (Rev. Stat., Art. 5060a), especially provides "that there shall be collected from every firm, * * * association of persons, selling spirituous, vinous or malt liquors, or medicated bitters within this State, an annual tax on each separate establishment. * * *" To sell medicated bitters you must pay a tax, unless sold by a druggist, as prescribed by the same act. It is not pretended that the appellant was a druggist, and, if he had been, his acts would have clearly been in violation of law. The indictment charged that he sold spirituous, vinous liquors, etc. It was not necessary for the indictment to charge that he sold medicated bitters, because the proof shows that that which he did sell was spirituous liquors, producing intoxication whenever it had a fair trial. Because a little red pepper, or lemon, or tincture, or some other stuff, is placed in the whiskey, it does not follow that it is not intoxicating. If it should be held that it was not, those engaged in this business, or a great many of them, would soon know how to doctor their liquors so as to evade the law. Local option was not in force when the Duncan bitters were sold. As stated in the brief of counsel, if these Duncan bitters were simply tinctures and drug compounds, and not intoxicating beverages, their curative properties must have been wonderful, for they seem to have met with a very general and extensive sale, excelling any bitters not producing intoxication we have any knowledge of. The court charged the jury correctly in regard to the penalty, except the imprisonment in the county jail from 10 to 90 days. This was omitted in the charge. The punishment is in the alternative. It is not like a case of petty theft, where imprisonment was a necessary part of the penalty, but it is fatal to this conviction. We cannot tell which is most favorable to the appellant, — the fine imposed, which could not have been less than $450, or the imprisonment, which was not less than 10 nor more than 90 days. If both punishments had been submitted to the jury, they might have imprisoned him, without fine. The law does not provide for him to be fined and imprisoned. It must be a fine alone, or imprisonment only. This punishment is prescribed by the legislature, (Acts 1893, p. 178, § 6, Penal Code, Art. 411a), and the court has no authority to prescribe any other. The judgment is reversed, and the cause remanded.
Reversed and Remanded. *Page 276