HARPER, Judge.
In this case the appellant was prosecuted for pursuing the occupation of selling intoxicating liquor in Camp County, local option being in force in said county. Hpon a trial he was convicted, and his punishment assessed at three years confinement in the penitentiary.
The only assignment of error is th^t “the verdict and judgment is contrary to the law and the evidence.” The indictment is in accordance with the form approved by this court in Mizell v. State, 59 Texas Crim. Rep., 226, 128 S. W. Rep., 125. Local option is shown to be in full force in said county; a number of sales being proven, and -the court having properly submitted the offense charged, the judgment, in our opinion, should be affirmed. However, under the contention that the evidence is insufficient to sustain a conviction, the contention is
made that, although the State proved a number of sales of whisky, yet as the State did not show that defendant did not have a license to ■sell on prescription, and said sales were not made on prescription, the conviction should be set aside. The evidence would exclude any such idea, as the whisky was sold in the highways and byways, and in dark corners, hut we hold that it is not necessary or incumbent upon the State to show any of these negative matters. Such provisions are matters of defense, and if a sale is made under such conditions, it being peculiarly within the knowledge of the defendant, it is incumbent upon him to make the proof. When the State has shown that local option is in force—that defendant has made sales of intoxicating liquors, and is pursuing that business or occupation—it has made a prima facie case.
In the case of Duke v. State, 42 Texas, 455, when our Supreme Court had jurisdiction of criminal matters, it held that under the peculiar wording of the statute at that time it was necessary in the indictment to make the negative averments, but as these negative matters “being averments of facts peculiarly within defendant’s knowledge, so that he would have no difficulty in showing the truth, no proof of such averments on the part of the State would be required. In the absence of proof, the presumption would he against the existence of facts so exceptional in their nature.” This holding is approved in Summerlin v. State, 3 Texas Crim. App., 446, the court saying: “That defendant was not a peace officer at the time, being an averment of fact peculiarly within defendant’s knowledge, so that he could have no difficulty in showing the truth, no proof of such averments on the part of the State would be required,” citing Commonwealth v. Hart, 11 Cush., 130. In Stoneham v. State, 3 Texas Crim. App., 594, this court holds: “When the State has adduced sufficient proof to sustain a conviction the accused has the burden of establishing any excuse, justification or explanation.” Again, in Leatherwood v. State, 6 Texas Crim. App., 244, the ruling in Duke v. State, supra, is approved, the decision saying: “The information attempts, by proper negative averments, to allege that accused did not come within any of the exceptions mentioned in the.statute. It is intimated in the motion for a new trial, that the State failed to prove that the defendant did not come within these exceptions. This position is untenable.” And it is held that it is not required that the negative averments should he proved by the State. See also Lewis v. State, 7 Texas Crim. App., 567; Leonard v. State, 7 Texas Crim. App., 417.
Our penal Code provides that it shall be unlawful to sell intoxicating liquors to a minor except upon the written consent of the parent, all being embodied in the same article. The contention is made that the exception being a part of the same article of the Code, and not in a separate provision, it was incumbent upon the State to prove want of consent. In Reynolds v. State, 32 Texas Crim. Rep., 36, Judge Hart, speaking for the court, says: “The second assignment
presents the question, Must the State prove the accused did not have the written order from the parent or guardian, or must the accused produce or establish the fact that he had such order? After mature reflection we are of opinion that the burden is on the accused.” This is approved in Jones v. State, 32 Texas Crim. Rep., 108; Kuhn v. State, 34 Texas Crim. Rep., 85; Partin v. State, 30 S. W. Rep., 1067.
In volume 4 of the second edition of American and English Encyclopedia of Law we find the following text laid down, citing the authorities named:
“Upon a charge of a sale of liquors or merchandise without a license as required by law, the burden has been held to be on the defendant to show a license.; for if he have a license, that is a fact peculiarly within his knowledge, as proof of it can be more easily made than proof of the negative can be by the prosecution. Farrall v. State, 32 Ala., 557; Williams v. State, 35 Ark., 430; Sharp v. State, 17 Ga., 290; Conyers v. State, 50 Ga., 103, 15 Am. Rep., 686; Noecker v. People, 91 Ill., 468; Gunnarssohn v. Sterling, 92 Ill., 569; Flora v. Lee, 5 Ill. App., 629; Shearer v. State, 7 Blackf. (Ind.), 99; Howard v. State, 5 Ind., 516; Taylor v. State, 49 Ind., 555; State v. Stapp, 29 Iowa, 551; State v. Curley, 33 Iowa, 359; Haskill v. Com., 3 B. Mon. (Ky.), 342; State v. Woodward, 34 Me., 293; State v. Crowell, 25 Me., 171; Smith v. Adrian, 1 Mich., 495; State v. Sehmail, 25 Minn., 370; Easterling v. State, 35 Miss., 210; Schmidt v. State, 14 Mo., 137; State v. Edwards, 60 Mo., 490; State v.. Foster, 23 N. H., 348, 55 Am. Dec., 191; State v. McGlynn, 34 N. H., 422; Bliss v. Brainard, 41 N. H., 256; State v. Morrison, 3 Dev. L. (N. Car.), 299; State v. Cutting, 3 Oregon, 260; Gueing v. State, 1 McCord L. (S. Car.), 573; Information against Oliver, 21 S. Car., 318, 53 Am. Rep., 681; Matter of Barrett, 28 U. C. Q. B., 559; Ex parte Parks, 8 New Bruns., 237.”
Again the same work says: “Where the means of proving the negative are. not within the power of the party alleging it, but all the proof on the subject is within the control of the opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment from the fact that such opposite party withholds or does not produce the proof that it is within his hands, if it exists, that the negative is not true, citing Sunderland Marine Ins. Co. v. Kearney, 16 Q. B., 925 (Eng.), 71 E. C. L., 925; Rex v. Burdett, 4 B. & Ald., 95 (Eng.), 6 E. C. L., 404; Rex v. Turner (Eng.), 5 M. & S., 206; Small v. Balyea (Can.), 24 New Bruns., 16; Great Western R. Co. v. Bacon, 30 Ill., 347, 83 Am. Dec., 199; State v. Crowell, 25 Me., 171; People v. Swineford, 77 Mich., 573, citing 2 Am. & Eng. Ency. of Law (1st ed.), 652; State v. Lipscomb, 52 Mo., 32; State v. Richeson, 45 Mo., 575; State v. McDuffie, 107 N. Car., 885; Govan v. Cushing, 111 N. Car., 458.”
In “Cye.” it is said: “Where the subject matter of a negative averment in the indictment, or a fact relied upon by defendant as a
justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him,” citing Ake v. State, 6 Texas Crim. App., 398, and authorities from nearly every State in the union. In the Ake case, supra, is a collation of the authorities on this subject.
Article
52
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HARPER, Judge.
In this case the appellant was prosecuted for pursuing the occupation of selling intoxicating liquor in Camp County, local option being in force in said county. Hpon a trial he was convicted, and his punishment assessed at three years confinement in the penitentiary.
The only assignment of error is th^t “the verdict and judgment is contrary to the law and the evidence.” The indictment is in accordance with the form approved by this court in Mizell v. State, 59 Texas Crim. Rep., 226, 128 S. W. Rep., 125. Local option is shown to be in full force in said county; a number of sales being proven, and -the court having properly submitted the offense charged, the judgment, in our opinion, should be affirmed. However, under the contention that the evidence is insufficient to sustain a conviction, the contention is
made that, although the State proved a number of sales of whisky, yet as the State did not show that defendant did not have a license to ■sell on prescription, and said sales were not made on prescription, the conviction should be set aside. The evidence would exclude any such idea, as the whisky was sold in the highways and byways, and in dark corners, hut we hold that it is not necessary or incumbent upon the State to show any of these negative matters. Such provisions are matters of defense, and if a sale is made under such conditions, it being peculiarly within the knowledge of the defendant, it is incumbent upon him to make the proof. When the State has shown that local option is in force—that defendant has made sales of intoxicating liquors, and is pursuing that business or occupation—it has made a prima facie case.
In the case of Duke v. State, 42 Texas, 455, when our Supreme Court had jurisdiction of criminal matters, it held that under the peculiar wording of the statute at that time it was necessary in the indictment to make the negative averments, but as these negative matters “being averments of facts peculiarly within defendant’s knowledge, so that he would have no difficulty in showing the truth, no proof of such averments on the part of the State would be required. In the absence of proof, the presumption would he against the existence of facts so exceptional in their nature.” This holding is approved in Summerlin v. State, 3 Texas Crim. App., 446, the court saying: “That defendant was not a peace officer at the time, being an averment of fact peculiarly within defendant’s knowledge, so that he could have no difficulty in showing the truth, no proof of such averments on the part of the State would be required,” citing Commonwealth v. Hart, 11 Cush., 130. In Stoneham v. State, 3 Texas Crim. App., 594, this court holds: “When the State has adduced sufficient proof to sustain a conviction the accused has the burden of establishing any excuse, justification or explanation.” Again, in Leatherwood v. State, 6 Texas Crim. App., 244, the ruling in Duke v. State, supra, is approved, the decision saying: “The information attempts, by proper negative averments, to allege that accused did not come within any of the exceptions mentioned in the.statute. It is intimated in the motion for a new trial, that the State failed to prove that the defendant did not come within these exceptions. This position is untenable.” And it is held that it is not required that the negative averments should he proved by the State. See also Lewis v. State, 7 Texas Crim. App., 567; Leonard v. State, 7 Texas Crim. App., 417.
Our penal Code provides that it shall be unlawful to sell intoxicating liquors to a minor except upon the written consent of the parent, all being embodied in the same article. The contention is made that the exception being a part of the same article of the Code, and not in a separate provision, it was incumbent upon the State to prove want of consent. In Reynolds v. State, 32 Texas Crim. Rep., 36, Judge Hart, speaking for the court, says: “The second assignment
presents the question, Must the State prove the accused did not have the written order from the parent or guardian, or must the accused produce or establish the fact that he had such order? After mature reflection we are of opinion that the burden is on the accused.” This is approved in Jones v. State, 32 Texas Crim. Rep., 108; Kuhn v. State, 34 Texas Crim. Rep., 85; Partin v. State, 30 S. W. Rep., 1067.
In volume 4 of the second edition of American and English Encyclopedia of Law we find the following text laid down, citing the authorities named:
“Upon a charge of a sale of liquors or merchandise without a license as required by law, the burden has been held to be on the defendant to show a license.; for if he have a license, that is a fact peculiarly within his knowledge, as proof of it can be more easily made than proof of the negative can be by the prosecution. Farrall v. State, 32 Ala., 557; Williams v. State, 35 Ark., 430; Sharp v. State, 17 Ga., 290; Conyers v. State, 50 Ga., 103, 15 Am. Rep., 686; Noecker v. People, 91 Ill., 468; Gunnarssohn v. Sterling, 92 Ill., 569; Flora v. Lee, 5 Ill. App., 629; Shearer v. State, 7 Blackf. (Ind.), 99; Howard v. State, 5 Ind., 516; Taylor v. State, 49 Ind., 555; State v. Stapp, 29 Iowa, 551; State v. Curley, 33 Iowa, 359; Haskill v. Com., 3 B. Mon. (Ky.), 342; State v. Woodward, 34 Me., 293; State v. Crowell, 25 Me., 171; Smith v. Adrian, 1 Mich., 495; State v. Sehmail, 25 Minn., 370; Easterling v. State, 35 Miss., 210; Schmidt v. State, 14 Mo., 137; State v. Edwards, 60 Mo., 490; State v.. Foster, 23 N. H., 348, 55 Am. Dec., 191; State v. McGlynn, 34 N. H., 422; Bliss v. Brainard, 41 N. H., 256; State v. Morrison, 3 Dev. L. (N. Car.), 299; State v. Cutting, 3 Oregon, 260; Gueing v. State, 1 McCord L. (S. Car.), 573; Information against Oliver, 21 S. Car., 318, 53 Am. Rep., 681; Matter of Barrett, 28 U. C. Q. B., 559; Ex parte Parks, 8 New Bruns., 237.”
Again the same work says: “Where the means of proving the negative are. not within the power of the party alleging it, but all the proof on the subject is within the control of the opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment from the fact that such opposite party withholds or does not produce the proof that it is within his hands, if it exists, that the negative is not true, citing Sunderland Marine Ins. Co. v. Kearney, 16 Q. B., 925 (Eng.), 71 E. C. L., 925; Rex v. Burdett, 4 B. & Ald., 95 (Eng.), 6 E. C. L., 404; Rex v. Turner (Eng.), 5 M. & S., 206; Small v. Balyea (Can.), 24 New Bruns., 16; Great Western R. Co. v. Bacon, 30 Ill., 347, 83 Am. Dec., 199; State v. Crowell, 25 Me., 171; People v. Swineford, 77 Mich., 573, citing 2 Am. & Eng. Ency. of Law (1st ed.), 652; State v. Lipscomb, 52 Mo., 32; State v. Richeson, 45 Mo., 575; State v. McDuffie, 107 N. Car., 885; Govan v. Cushing, 111 N. Car., 458.”
In “Cye.” it is said: “Where the subject matter of a negative averment in the indictment, or a fact relied upon by defendant as a
justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him,” citing Ake v. State, 6 Texas Crim. App., 398, and authorities from nearly every State in the union. In the Ake case, supra, is a collation of the authorities on this subject.
Article
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of our Penal Code reads: “On the trial of any criminal action, Avlien the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on Avhicli he relies to excuse or justify the prohibited act or omission.” Under this article of White’s Penal Code will be found cited numerous authorities in which it is held that these are matters of defense, and it is not incumbent upon the State to make any proof in regard thereto. Not only is this the rule in this State, but from an examination of the authorities we find that this is true of almost every State in the union.
In the case of People v. Boo Doo Hong, 122 Cal., 607, the Supreme Court of that State holds: “At the trial uncontradicted evidence Avas introduced by the prosecution sufficiently showing that for several months prior to the filing of the information defendant had been practicing medicine at Bed Bluff, in the county of Tehama (People v. Lee Wah, 71 Cal., 80), but no evidence Avas introduced on either side showing, or tending to show, that defendant had or had not a certificate to so practice, as required by law. (Stats. 1875-76, p. 792; Stats. 1877-78, p. 918.) And at the conclusion of the evidence the court instructed the jury quite fully upon all the questions of law involved in the case, and, among other things, told them, in effect, that the burden was upon the defendant to establish that he had a certificate to practice medicine as provided by law, and if he failed to proA^e that he had such certificate, then it must be taken as true that he had not procured a certificate to so practice medicine.
“It is contended for appellant that the said instruction was erroneous and misleading, and that the verdict was not justified by the evidence, because in a criminal action the defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and this presumption continues through the entire trial, and the burden is upon the people to establish his guilt by proving every material allegation of the information, and that as the information charged that defendant had practiced medicine without having a certificate to do so, it devolved upon the people to prove that fact, and having entirely failed to offer any such proof, he ought not to have been convicted, and his motion for neAV trial should have been granted.
“The general rule is undoubtedly as above stated, but there is a well-recognized exception to the rule, where there is a negative averment of a fact which is peculiarly Avithin the knowledge of the defendant.
“Mr. Greenleaf, in his Avork on Evidence, volume 1, section 79, un
der the heading ‘Negative Allegations/ says: ‘But when the subject matter of a negative averment lies peculiarly, within the knowledge of the other party, the averment is taken as true unless disproved by that party. Such is the ease in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, an.d the like. Here the party, if licensed, can immediately show it without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great.’ (Citing a large number of cases. See also 3 Eice on Evidence, section 260, where the same rule is declared.)
“In 1 Jones’ Law of Evidence, section 179, under the heading ‘Burden as to Particular Facts Lying Peculiarly Within Knowledge of a Party/ it is said: ‘This is often illustrated in prosecutions for selling liquors or doing other acts without the license required by law. By a few authorities the rule is prescribed that in such cases the prosecution must offer some slight proof of the fact that no license has been granted, for example, by producing the book in which licenses are recorded; and, if the book fails to show that a license has been granted, the burden is shifted upon the defendant to prove the fact claimed by him; but the greater number of authorities hold that where a license would be a complete defense the burden is upon the defendant to prove the fact so clearly within his knowledge.’ (Citing cases.)”
In Arkansas it.is held, Cleary v. State, 56 Ark., 124: “The exceptions in a penal statute, which are required to be negatived, are such as are so incorporated with and a part of the enactment, as to constitute a part of the definition or description of the offense. (State v. Abbey, 29 Vt., 60.) Not all labor on the Sabbath is forbidden by the statute, but only that which is in the performance of customary household duties, of daily necessity, comfort or charity. Such labor, not in the discharge of household duties, as is a necessary incident to the accomplishment of a lawful purpose, is not a violation of the statute. (Crocket v. State, 33 Ind., 416.) It is a general rule that that which must be stated as a part of or a necessary description of a penal offense in an indictment, must be proven by the prosecutor. It is a general rule of evidence that where the negative of an issue does not permit direct proof, or where the facts come more immediately within the knowledge of the defendant, the
onus probandi
rests upon him. The State, for instance, is not required to prove that one who sells spirituous liquors has no license. When the State made a prima facie case in the cause at bar by proving that the defendant performed labor on Sunday not apparently a work of necessity, the burden was then upon the defendant to show that the labor was a work of necessity—that his ease came within the exception in the statute. Fleming v. People, 27 N. Y., 334.”
In Vermont it was held, in State v. Abbey, 29 Vt., 60: “The fifth section of the Act on which this indictment is drawn contains the en
acting clause in which the exceptions are made of those cases which are specified in the sixth section. The cases excepted do not define or qualify the offense created by the enacting clause. If the facts are alleged in the indictment, and proved on trial, that the respondent had a former husband or wife living, and married another person, or continued to cohabit with such second husband or wife in this State, the offense is fully made out. A prima facie case is stated and proved. If, in fact, the former husband or wife of the respondent had been continually beyond the sea, or out of the State for seven years together, and the respondent had married again, not knowing the other to be living within that time, or if the respondent had been divorced, or the marriage had been declared null and void by the sentence of the court, or if the former marriage was within the age of consent, and not afterwards assented to, those facts should be relied upon and proved by the respondent in his defense. As was observed by the court in the case of State v. Barker, 18 Vt., 197, ‘the facts are peculiarly within the knowledge of the respondent,’ and the onus of their proof should rest on him.
“The sixth section declares that: ‘The provisions of the preceding section shall not extend to any person,’ etc. This is strictly an exception, and ‘that which is excepted out of an Act is out of its provisions;’ as much so as if the Act had never been passed. Cases excepted from the Act necessarily do not define, qualify, or in any way affect the provisions of the enacting clause. It is a statutory provision overriding the whole Act, that to those cases the Act does not extend. In such cases exceptions need not be negatived, but are to be treated as matters of defense, and are to be relied upon by the respondent as such. Lawton v. Hickman, 9 Adol. & Ellis, N. S., 563; 58 Eng. Com. Law, 561, 588; Thibault v. Gibson,
12
Mees. & Wels., 88, and note; Simpson v. Ready, ib. 734. The difficulty and impracticability arising from a different construction of the Act is itself a good reason why it should not be adopted; particularly as all the matters embraced in those exceptions are peculiarly within the knowledge of the respondent.”
In Illinois it was held; in the case of Williams v. The People, 121 Ill., 84: “When the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor, as, for selling liquor, exercising a trade or profession, and the like. People v. Nedrow, 16 Bradw. 192; 1 Greenleaf on Evidence, section 79, p. 92; Great Western Railroad Co. v. Bacon, 30 Ill., 347; Harbaugh v. Town of Monmouth, 74 id., 367; Noelke v. People, 94 N. Y., 137; Town of Flora v. Lee, 5 Bradw., 629.”
In Missouri it was held in the case of State v. Lipscomb, 52 Mo., 32: “A license must be shown by the party claiming its protection.
When the subject matter of the negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecution for a penalty for doing an act which the statutes do not permit to be done by any persons except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like. Hence the party, if licensed, can show it - without the least inconvenience. (See 1 Green. Ev., section 79; 10 Mo., 591.) The indictment charges that a sale was made in June, 1871, and the evidence, introduced by the State sustains the allegation.”
In New Hampshire it was held, in State v. McGlynn, 34 N. H., 426: “The next exception taken was that the indictment, having alleged that the respondent was not an agent for the sale of liquor, the State was bound to prove that fact.
“In many cases negative averments and allegations, being of the essence of the offense or of the ground of action, must be proved. But where the subject matter of a negative averment relates to the defendant personally, or is peculiarly within his knowledge, the averment will be taken as true unless disproved by him. Rex v. Turner, 5 M.
&
S., 206; United States v. Hayward, 2 Gall., 485; Shelden v. Clarke, 1 Johns., 513; 1 Greenl. Ev., section 79.
“This rule was sanctioned in this State in the case of State v. Foster, 3 Foster, 34-8, on an indictment for a breach of the license laws; the indictment alleging that the respondent, not being licensed, etc., sold, etc., and no evidence being offered that the defendant had not a license. The court in that case held that it was unnecessary to prove the averment.
“The present case falls within that rule. The statute provides that no person not being an agent shall sell, etc., and the former statute provided that no person not being licensed, etc., shall sell. The averments upon both statutes upon this point are negative in their character, but the subject matter of the same lies peculiarly within the knowledge of the defendants. They stand upon the same principle, and this exception can not prevail.”
In New York it was held in People v. Nyce, 41 N. Y. Sup. Ct., 298 (34 Hun, 298) : “On the trial the defendant admitted the fact that he had practiced medicine at the time and place charged in the indictment; whereupon the district attorney rested the case. The defendant then moved for his discharge on the ground that mere proof that he practiced medicine was insufficient to convict him of so practicing without a license. The court denied the motion. To practice medicine without a license or diploma, issued or granted to the practitioner, as the law requires, is declared a misdemeanor, and is punishable as such. It being then proved or admitted that the defendant practiced medicine, it was incumbent on him, in order to avoid the penalty imposed for the alleged unlawful act, to show that he did so under the protection of a license or diploma. The burden of proof
was on him to show his justification. It has been so decided in many instances in analogous cases where persons were charged with selling liquor without license so to do. (Potter v. Deyo, 19 Wend., 361; The People v. Quant, 2 Park. C. R., 410; The Mayor v. Mason, 1 Abb. Pr., 344.)"
See also authorities cited under section 721, Criminal Law, Cent. Dig., and the cases of Dozier v. State, and Slack v. State, decided at this term of court.
We could extend the citation of authorities at length, but deem it unnecessary. The judgment is affirmed.
Affirmed.