The appeal is from a conviction for the offense of transporting liquor in a wet area without a permit. A fine of $100.00 was assessed.
We understand from the record as emphasized by the brief filed in this case that the question for our consideration is the sufficiency of the complaint and information to charge an offense. Willie Anderson and Robert Dawson were originally charged together *Page 412 with unlawfully transporting whiskey in a wet area in the city of Amarillo "without first having procured a permit to transport such liquor." The appellant was separately tried and brings this appeal.
Contention is made that in the absence of an averment that she came within one of the classes mentioned in Section 15 of Article 666 P. C., the pleading was fatally defective. In other words, she contends that the State must determine the class of persons to which she belongs; that it was one of those for which a permit could be issued and that she had not secured such a permit. It would seem then that such contention could logically be extended so that other persons than those for whom a permit may be issued would be privileged to transport liquor at will within a wet area. This is contrary to the statutes.
So far as it pertains to the question before us, Article 666-4(a) P. C. reads: "It shall be unlawful for any person to * * * transport * * * any liquor in any wet area without first having procured a permit of the class required for such privilege." Subsequent subdivisions of the same Article, among other things, provide for and regulate the issuing of various permits to those entitled to receive them. Other provisions are the exceptions to the broad inhibition above quoted. We particularly refer to the following exception in the same Article under subdivision 23a (1): "It is provided that any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal." This broad exception provides for the transportation of legally purchased liquor for one's own use from a point within a wet area to any other point where he may possess it for that purpose, even within the same wet area where it was purchased. This language is plain and definite and at once answers and utterly destroys every contention made in appellant's brief. It is very evident that the brief did not take into account this exception.
In the consideration of the case in its entirety, the suggestion has been presented that unless a person comes within one of the classifications he would not be required to have a permit and that it therefore becomes the duty of the State to allege the classification to which the party belongs and negative the fact of her having a permit for that particular classification. In view of the quoted Article we can not agree to this view. It seems perfectly clear that all persons are forbidden to transport liquor without a permit unless they come within some exception provided *Page 413 in the statute. If they do, that becomes a matter of defense. This naturally leads to the observation that the State must allege that the transportation was made without a permit and that the State assumes the burden of proof of the allegation. This may be a difficult burden for the State at times but the difficulty does not change the provisions of the statute. However, in the instant case the State was accommodated by the admission of the parties when they were approached by the witness Garrison. He saw the two parties loading large quantities of liquor and driving away from a package store. The load consisted of three cases of ale and twenty-four pints of assorted brands of whiskey. The officer asked if they had an invoice and they said they did not. He then asked if they had a permit to transport this liquor and they said they did not. Each of them said "no" to the question. This evidence was admitted without objection and supplies the necessary proof to make a case.
If the party accused comes within a class and has a permit to transport intoxicating liquor, the pleadings in this case sufficiently call upon him to answer the charges by presenting the facts and such facts, when presented, would be a complete defense to the charge if there be a permit regularly issued. Likewise, if she was transporting it for her own use, this may be shown as a defense. No hardship is imposed. The procedure is simple and there is nothing indefinite about the statute.
The difficulty encountered in the consideration of these questions arises from a widely divergent view on the fundamental principles underlying the regulation of the liquor traffic. There is a school of thought which clings to the idea that there exists an individual right to possess and use intoxicants in whatever manner the individual may desire. This is contrary to the right to regulate which is based upon the theory that the person who uses intoxicating liquor does so under a highly guarded privilege. It is not necessary to here discuss the merits of the contention on the subject. The law under which we act is founded upon the latter view and that fact precludes further discussion by us. The individual who transports liquor for himself does so under the restrictions set out in the Liquor Control Act and by reason of the exceptions found therein and not as an inherent right. It is not a new thing in the criminal procedure that the party on trial may be required to assume the burden of proof of his defense. It is very similar in the prosecution of this character of cases to what it is in a prosecution for murder. A party is brought into court charged with having killed another and he has the burden of procedure to prove self-defense, alibi, etc. *Page 414 So it is with many other defenses. While he has this burden it is limited in the extent to which he may be required to make the proof. It is sufficient to his defense that his evidence creates a doubt in the minds of the jury. So it is in the instant case, but she had the burden nevertheless of procedure. The court gave a proper charge on the defense in the instant case and thus complied with a reasonable construction of the law, a law regulating the liquor traffic, which is built upon the same general principles as other regulatory laws of our State.
The judgment of the trial court is affirmed.