DAVIDSON, Presiding Judge.
Appellant was convicted for engaging in- the sale of intoxicating liquors in justice precinct No.
2
of Hunt County, without first having obtained a license for that purpose, under Acts Twenty-fifth Legislature, pages 223, 224. This information is substantially the same as that in the Snearly Case, 40 Texas Criminal Reports, 507. The indictment in the above case was held sufficient by a majority of the court. My views were expressed in the dissenting opinion. I am still of the opinion that the indictment does not charge an offense under the language employed by the act of the Legislature. The section under which this information was drawn reads as follows: “And there shall be collected from every person, firm, corporation, or association of persons, for every separate establishment selling such liquors and medicated bitters within this State, within a county, subdivision of a county, justice precinct, town or city in which local option is in force under the laws, the sum of $200; provided same shall not be sold in such localities except on prescription and in compliance with the laws governing the sales in such localities; provided further, that nothing in this article shall be so construed as to exempt druggists who sell spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, on the prescription of a physician, or otherwise, in either locality as above set forth, from the payment of the tax herein imposed; provided further, that this article shall not apply to the sale by druggists of tinctures and drug compounds, in the preparation of which such liquors or medicated bitters are used and sold on the prescription of a physician or otherwise; and which tinctures and compounds are not intoxicating beverages prepared in the evasion of the provisions of this chapter, nor the local option law.” This is an excerpt from article 5060a, Revised Statutes, as amended by the act of the Twenty-fifth Legislature. The previous portion of this article levies a tax upon
parties selling spirituous or vinous liquors in quantities of one gallon or less, or one gallon or more, and for malt liquors exclusively. Each one of these occupations is distinct and separate from the others, and requires a license to pursue or engage in the particular business of selling in quantities from one gallon or under one gallon in local option precinct, as the case may be. This being the case, the pleader must draw the information or indictment, in order to charge the particular offense for which the conviction was sought. The information should have averred that appellant was engaged in that business in the local option precinct, without obtaining a license for the purpose of selling on prescription. An inspection of this information clearly shows that this offense is not set out, nor attempted to be set out. In order to charge a violation of this portion of the article, it is necessary, after setting out the local option territory, to charge appellant with engaging in the business of selling intoxicants in the local option territory, without first having obtained a license for the purpose of selling in said territory on prescription. In setting out this particular portion of the offense, the writer suggests, the following would be sufficient (after setting out the fact that local option was in existence): That the party did unlawfully engage in the sale of intoxicating, vinous, and malt liquors and medicated bitters without first having obtained a license for the purpose of selling same on prescription of a regular, practicing physician; said occupation being then and there taxable by law; the said party not then and there being a druggist selling tinctures and drug compounds in the preparation of which such liquors or medicated bitters are used, and sold on the prescription of a physician, or otherwise.
If this law is valid, which the writer does not concede, then it is necessary to charge a violation of the particular character of license required in that particular territory as a prerequisite to engaging in the sale of such intoxicants. As the law requires a license to sell on prescription before the party can engage in the business, in order to secure a conviction for a violation thereof the essential elements of that offense must be distinctly averred. An indictment general in its terms will not do. The only license that can be obtained in local option territory, under this act, is one authorizing the sale of intoxicating liquors on the prescription of a regular, practicing physician. It has also been held, as understood by the writer, that, where the party desires to engage in the sale of intoxicants in quantities of a gallon or less, the license, must specify not only the amount desired to be sold, but it must specify even the very place in which it is to be sold. And, where the information charges a violation of this occupation law, it will not sustain a conviction where the party was engaged in selling in quantities of over a gallon: Nor will evidence that a party was engaged in selling in quantities in excess of a gallon support an allegation that he was engaged in selling quantities less than one gallon. So, where a party has a license to sell malt liquors only, it will not author
ize him to sell spirituous or vinous intoxicants; and it has been even held that the license to sell malt liquors can not be introduced in evidence where the party was charged with selling spirituous or vinous intoxicants. Gersteman v. State, 35 Texas Crim. Rep., 318; Lucio v. State, 35 Texas Crim. Rep., 320. See also White’s Ann. Penal Code, sec. 737.
It is also well settled that where the definition of the offense contains an exception which would not bring a party within the inhibitions of the law, that exception must be negatived in the indictment, for the simple reason that he is not amenable to the law. In Rice v. State, 37 Texas Criminal Reports, 36, Judge Henderson, speaking for the court, said: “With regard to setting out a criminal offense, it is a familiar rule, and without exception, that, where an offense is defined by our statute (and there are none other in this State), all of the essential elements of the offense must be alleged in the indictment. And it has been held that it is incompetent for even the Legislature to create an exception to this rule. See Hewitt v. State, 25 Texas, 722. It has also further been held that where a statute creating an offense, in the body thereof, or as a part of the enacting clause, contains an exception so that the one can not be read without the other, then the exception must be negatived. It is different where the exception is not contained in the enacting clause, but in a different, substantive clause, subsequent to the enacting clause. In such case, though it be in the same section, it is a matter of defense, to be shown by the defendant. Lord Tenterden thus states the rule: Tf an act of Parliament or a private instrument contain in it first a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but, if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception.’ 6 Barn. & C., 432. On this subject, see Commonwealth v. Hart, 11 Cush., 130, reported in 2 Benn. & Heard, Crim.
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DAVIDSON, Presiding Judge.
Appellant was convicted for engaging in- the sale of intoxicating liquors in justice precinct No.
2
of Hunt County, without first having obtained a license for that purpose, under Acts Twenty-fifth Legislature, pages 223, 224. This information is substantially the same as that in the Snearly Case, 40 Texas Criminal Reports, 507. The indictment in the above case was held sufficient by a majority of the court. My views were expressed in the dissenting opinion. I am still of the opinion that the indictment does not charge an offense under the language employed by the act of the Legislature. The section under which this information was drawn reads as follows: “And there shall be collected from every person, firm, corporation, or association of persons, for every separate establishment selling such liquors and medicated bitters within this State, within a county, subdivision of a county, justice precinct, town or city in which local option is in force under the laws, the sum of $200; provided same shall not be sold in such localities except on prescription and in compliance with the laws governing the sales in such localities; provided further, that nothing in this article shall be so construed as to exempt druggists who sell spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, on the prescription of a physician, or otherwise, in either locality as above set forth, from the payment of the tax herein imposed; provided further, that this article shall not apply to the sale by druggists of tinctures and drug compounds, in the preparation of which such liquors or medicated bitters are used and sold on the prescription of a physician or otherwise; and which tinctures and compounds are not intoxicating beverages prepared in the evasion of the provisions of this chapter, nor the local option law.” This is an excerpt from article 5060a, Revised Statutes, as amended by the act of the Twenty-fifth Legislature. The previous portion of this article levies a tax upon
parties selling spirituous or vinous liquors in quantities of one gallon or less, or one gallon or more, and for malt liquors exclusively. Each one of these occupations is distinct and separate from the others, and requires a license to pursue or engage in the particular business of selling in quantities from one gallon or under one gallon in local option precinct, as the case may be. This being the case, the pleader must draw the information or indictment, in order to charge the particular offense for which the conviction was sought. The information should have averred that appellant was engaged in that business in the local option precinct, without obtaining a license for the purpose of selling on prescription. An inspection of this information clearly shows that this offense is not set out, nor attempted to be set out. In order to charge a violation of this portion of the article, it is necessary, after setting out the local option territory, to charge appellant with engaging in the business of selling intoxicants in the local option territory, without first having obtained a license for the purpose of selling in said territory on prescription. In setting out this particular portion of the offense, the writer suggests, the following would be sufficient (after setting out the fact that local option was in existence): That the party did unlawfully engage in the sale of intoxicating, vinous, and malt liquors and medicated bitters without first having obtained a license for the purpose of selling same on prescription of a regular, practicing physician; said occupation being then and there taxable by law; the said party not then and there being a druggist selling tinctures and drug compounds in the preparation of which such liquors or medicated bitters are used, and sold on the prescription of a physician, or otherwise.
If this law is valid, which the writer does not concede, then it is necessary to charge a violation of the particular character of license required in that particular territory as a prerequisite to engaging in the sale of such intoxicants. As the law requires a license to sell on prescription before the party can engage in the business, in order to secure a conviction for a violation thereof the essential elements of that offense must be distinctly averred. An indictment general in its terms will not do. The only license that can be obtained in local option territory, under this act, is one authorizing the sale of intoxicating liquors on the prescription of a regular, practicing physician. It has also been held, as understood by the writer, that, where the party desires to engage in the sale of intoxicants in quantities of a gallon or less, the license, must specify not only the amount desired to be sold, but it must specify even the very place in which it is to be sold. And, where the information charges a violation of this occupation law, it will not sustain a conviction where the party was engaged in selling in quantities of over a gallon: Nor will evidence that a party was engaged in selling in quantities in excess of a gallon support an allegation that he was engaged in selling quantities less than one gallon. So, where a party has a license to sell malt liquors only, it will not author
ize him to sell spirituous or vinous intoxicants; and it has been even held that the license to sell malt liquors can not be introduced in evidence where the party was charged with selling spirituous or vinous intoxicants. Gersteman v. State, 35 Texas Crim. Rep., 318; Lucio v. State, 35 Texas Crim. Rep., 320. See also White’s Ann. Penal Code, sec. 737.
It is also well settled that where the definition of the offense contains an exception which would not bring a party within the inhibitions of the law, that exception must be negatived in the indictment, for the simple reason that he is not amenable to the law. In Rice v. State, 37 Texas Criminal Reports, 36, Judge Henderson, speaking for the court, said: “With regard to setting out a criminal offense, it is a familiar rule, and without exception, that, where an offense is defined by our statute (and there are none other in this State), all of the essential elements of the offense must be alleged in the indictment. And it has been held that it is incompetent for even the Legislature to create an exception to this rule. See Hewitt v. State, 25 Texas, 722. It has also further been held that where a statute creating an offense, in the body thereof, or as a part of the enacting clause, contains an exception so that the one can not be read without the other, then the exception must be negatived. It is different where the exception is not contained in the enacting clause, but in a different, substantive clause, subsequent to the enacting clause. In such case, though it be in the same section, it is a matter of defense, to be shown by the defendant. Lord Tenterden thus states the rule: Tf an act of Parliament or a private instrument contain in it first a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but, if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception.’ 6 Barn. & C., 432. On this subject, see Commonwealth v. Hart, 11 Cush., 130, reported in 2 Benn. & Heard, Crim. Cas., 1, and the extended and exhaustive note thereto. This same question has also been before this court a number of times, and the same doctrine has been repeatedly enunciated as the rule. See Colchell v. State, 23 Texas Crim. App., 584; Leatherwood v. State, 6 Texas Crim. App., 244; Huntsman v. State, 12 Texas Crim. App., 619; Hewitt v. State, 25 Texas, 722; State v. Duke, 42 Texas, 455; State v. Clayton, 43 Texas, 410.” Rice’s case, quoted from, was construing the late act of our Legislature upon carnal knowledge of a girl under 15 years of age, other than the wife of defendant, and the question was whether or not the fact- that she was not the wife of the accused should be negatived in the indictment. In this opinion Judge Henderson further said: “Applying this rule to the construction of this statute, it will
be seen that the words ‘other than the wife of the person’ occurred in the body of .the enacting clause. The offense can not be read without reading this. It does not occur in any proviso, or distinct, substantive clause, but is a part of the act itself; and under the rule heretofore laid down, the indictment should negative the.fact that the alleged injured female was the wife of the defendant.” If there is an exception to this rule in this State, it has escaped the attention of the writer. In support of this proposition, see also State v. Smith, 24 Texas, 285; Lewis v. State, 2 Texas Crim. App., 26; Owens v. State, 3 Texas Crim. App., 404; Summerlin v. State, 3 Texas Crim. App., 444; Blasdell v. State, 5 Texas Crim. App., 263; Lewis v. State, 7 Texas Crim. App., 567; Brown v. State, 9 Texas Crim. App., 171; Zallner v. State, 15 Texas Crim. App., 23; Mosely v. State, 18 Texas, 311; Bice v. State, 37 Texas Crim. Rep., 38. It is unnecessary to cite further authorities, .for, if a rule can be settled at all, this is settled by the authorities cited. In this connection it will be noted that it is only necessary to negative the exceptions contained in the body of the act when those exceptions or provisos, as the case may be, eliminate the offending party from the operation of the offense denounced in the statute. If there are provisions or exceptions in the body of the act which include the offending party in the operation of the definition of the offense, it is not necessary to negative those, because it would not release from the operation of the statute. So it is only necessary to negative exceptions when they do operate to pull him outside the statute, and not include him within it. Tested by these rules, this indictment is clearly insufficient, and does not charge the offense sought to be averred.
The writer does not believe this portion of the act of the Legislature is valid, and my reasons have been stated in the dissenting opinion in the Snearly case, supra. The majority of the court, however, believe both the local option and the occupation tax laws are in force in the same territory. They have the authority vested in them by the law, as a majority, to so hold; and, under their view, both the local option and the license law are operative at one and the same time. If their view is correct, then a party can not sell intoxicants in a local option territory without first obtaining a license to sell on prescription. But, if he does sell otherwise than under the license, he would be amenable then to the local option law. The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.