
    MEALER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1911.
    On Motion for Rehearing, March 27, 1912.)
    1. Intoxicating Liquors (§ 200) — Criminal Liability — Statutory Provisions.
    An act approved April 24, 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 35), which makes it a felony to sell intoxicating liquors within a county, etc., in which the sale of intoxicating liquors had been prohibited, did not become effective until on or after July 24, 1909. Under the law of the state, the enactment did not apply to a given territory until put in force therein by an election held, declared, and published, though valid and existing on the statute books. Prior to the enactment in question, the sale of intoxicating liquors made a felony was a misdemean- or only. An indictment charged the commission of such an offense on August 1, 1909. Held that, as to have ordered, held, declared, and published for four weeks after prohibition had been declared, an election putting the felony statute into effect in the district in which the offense was charged would have been a physical impossibility between July 24th and August 1st, and, as the felony statute could not have been in effect, the indictment charged only a misdemeanor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 219-220; Dec. Dig. § 200.]
    2. Criminal Law (§ 33) — Criminal Liability-Mistake of Law and Fact.
    Under Pen. Code 1911, art. 46, which provides that a mistake of fact, but not of law, may excuse a criminal act, and article 47, which provides that the mistake of fact must be such that the person acting thereunder would have been excusable had his conjecture been correct, an employd in a place where intoxicating liquors were sold, and who sold them, must show in order to relieve himself from liability not only that he did not know that intoxicating liquors were for sale and that he did not knowingly sell them, but also that he could not have known by an exercise of proper care.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 37; Dec. Dig. § 33.]
    3. Criminal Law (§ 830) — Trial—I nstruc - tions — Addition or Omitted Portion.
    Where a requested instruction in a criminal prosecution does not fully state the law, a refusal of the court to correct it and submit it to the jury is proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; 'Dec. Dig. § 830.]
    4.Criminal Law (§ 1173) — Appeal and Error — Prejudicial Error.
    Under Code Cr. Proc. 1911, art. 743, which provides that a disregard of Code provisions as to the charges to be given by the court in criminal and misdemeanor cases shall not reverse unless the error was calculated to injure the rights of the defendant, a failure to supplement a requested charge in a prosecution for an illegal sale of liquor by the addition of matters sua sponte which would make it properly state the law will not reverse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. 5 § 1173.]
    On Motion for Rehearing.
    5.. Indictment and Information (§ 159)— Sufficiency of Accusation — Date of Offense — Amen dment .
    An allegation of an indictment or information as to the date when an offense was committed is a matter of substance and may not be amended.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    6. Indictment and Information (§ 117)— Assistance by Proof.
    A pleading is measured by its allegations and not by the proof that may be introduced thereunder, and, in determining whether an indictment discloses a prima facie case, the court will assume that the time of the commission of the act charged is as stated therein.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 310; Dec. Dig. § 117.]
    7. Indictment and Information (§ 87)— Sufficiency of Accusation — Time of Commission.
    While, where an indictment or information charges that an offense was committed on a particular date, proof may be admitted thereunder showing the commission of the offense at any time between the date of the filing and the time prior thereto within the period of the limitation of the offense, except where the offense is such that it may be committed only at certain portions of the year or on Sunday, an indictment which charges the commission of a misdemeanor or felony within the period of limitation without giving the day, month, and year is not sufficient.
    [Ed. 'Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 24A-255; Dec. Dig. § 87.]
    Appeal from County Court at Law, Dallas County; W. F. Whitehurst, Judge.
    R. V. Mealer was convicted of violating the prohibition law, and appeals.
    Affirmed.
    Barry Miller, for appellant. R. M. Clark. Co. Atty., Currie McCutcheon, Asst. Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Ain. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On April 25, 1910, the county attorney of Dallas county filed an information against appellant on affidavit of Bennett charging appellant with unlawfully making a sale of intoxicating liquors to Scott on August 1, 1909', in a eer-tain precinct In Dallas county, describing it, after an election had been held therein and the voters had voted in favor of prohibition and after the proper order declaring the result had been made, passed, and entered by the commissioners’ court of that county and the order had been properly published on the order of the county judge for the length of time required by the statute. There was no allegation in the affidavit or information when the election was held, declared carried, and the proper orders made and publication had. The appellant was convicted and appealed.

There are but two questions to be decided: First, the appellant made a motion to quash the complaint and information on the ground because they fail to show the date when said election was held, whether it was before or after the act of the Legislature making such sale a felony. The question was also raised by a motion in arrest of judgment. The court overruled both motions and the appellant properly saved his point by proper bill of exceptions and motion for new trial.

The act making such sale a felony went into effect on July 24, 1909. The statement of the facts above shows that the election could not have been held, properly declared, the advertisement made,- for the time required by law, between July 24, 1909, and August 1, 1909, the date the sale is charged. This is very evident, because the law making it a felony went into effect July 24, 1909, and appellant is charged to have committed the offense on August 1, 1909, within eight days thereafter. Even if an election had been held any time between July 24th and August 1st, prohibition could not, under the law thereunder, have been put in force in said precinct until the proper orders were made and the publication of at least four-weeks, which physically could not have occurred between July 24 and August 1, 1909. Hence the offense in this case was a misdemeanor under the previous decisions of this court which seem to have been followe'd by the last Legislature in enacting the Revised Statutes of this state. P. C. 597, new revision.

This is unlike the ease of Head v. State, 141 S. W. 536, this day decided by this court. In fhe Head Case the sale is alleged to have occurred on September 29, 1909. It will be seen that in that case the requisite length of time from July 24th to September 29th elapsed to have held, declared, and properly published the prohibition election so as prima facie to make the offense a felony as we held in the Head Case. The court did not err in overruling appellant’s said motions in this case.

The other question is to the refusal of the court to give this charge requested by appellant: “You are instructed that if the defendant was merely a hired hand of Anderson, the owner of the place where intoxicating liquor was sold S. B. Scott, if any was sold him, and did not know there was any intoxicating liquor for sale there, and did not sell S. B. Scott intoxicating liquor knowingly, then you will acquit the defendant.” The appellant’s contention is that this charge was correct on the question of a mistake by appellant in selling the intoxicating liquors; such mistake having been made in good faith.

Our statute on the subject of mistake of fact is as follows: “Art. 46. No mistake of law excuses one committing an offense; but, if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense.” “Art. 47. The mistake as to fact which will excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.” These articles show, as stated in article 47, that such mistake must not arise from a want of proper care on the part of the person committing the offense which is clearly omitted from the said special requested charge. Therefore that charge did not properly present the law on the subject to the jury.

This court in Lawrence v. State, 20 Tex. App. 536, said: “While a court may qualify or modify an instruction which is asked so as to make it present the law as the court perceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous instruction, but may refuse it outright.”

Again this court in Sparks v. State, 23 Tex. App. 448, 5 S. W. 135, in construing our statutes on the subject of giving written requested charges in misdemeanor cases, said: “This statute does not make it obligatory upon the court to prepare and give a written charge when requested to do so by the parties, but only requires the court to give or refuse such charges as are asked in writing. If charges are asked in writing, the court shall give or refuse them, with or without modification. But, if the court refuses such as are asked, it is not required to supplement them by any charges of its own; it may still, if it desires, decline to give any written charge in the ease. In misdemeanors, the object and policy of the law seems to be to relieve the court of the burden and necessity of giving charges, unless the parties deem it necessary that such instructions as they may prepare in writing should be given. Such as are thus prepared may or may not be given. The court should not give instructions which it does not believe to be the law, and it is not even required to modify such charges, but may refuse them absolutely.”

This court has always adhered, to this doctrine. In Hobbs. v. State, 7 Tex. App. 118, the court discusses fully and gives the reasons for the doctrine.

This is further made certain since the amended enactment of the Code of Criminal Procedure 1911, art. 723 (new revision, art. 743). There is therefore no reversible error presented on this ground.

It is unnecessary to discuss the. facts in this case. The testimony of several of the witnesses for the state showed that on the date charged they went to the place where the appellant was at work; that he was behind the bar with another man waiting upon the customers. That Scott, the party to whom the illegal sale is charged to have been made, ordered beer; that it was sold to’ him by the appellant; that it was then drank by him and his associates in the place where appellant was at work behind the bar; that his companions, and others immediately thereafter, ordered of him beer again, which he sold to them and which they again drank in his presence. Other witnesses showed that he had been at work behind the bar at this same place for some length of time, and that various parties about that time had driven up and ordered beer and that appellant had served it to them; that this occurred very frequently about this time.

It was also shown by the witnesses that lunch and meals were served at this same place, and that soft drinks, such as lemonade, soda water, etc., were also served there during all this time. It was also shown that there were eight indictments against appellant’s employer at this place for violations of this same law about the time appellant was charged in this case, and that the appellant knew this. He testified that his employer, the party so indicted, conducted that business and not him, and that he had no interest in the business, and further that there was no intoxicating liquor for sale at the place that he knew of. That, if there was, he knew nothing about it, and if there was any beer there he did not see it. He denied selling any intoxicating liquors or beer to Scott or anybody in his party; that he was employed by the week, and that he did the cooking and preparing of chicken sandwiches, lunches, etc., that were served there; that it was no part of his duties to wait on customers behind the bar; that he may have been around there. That he knew whisky and beer when he saw it, but that, if any such was sold there, it was done without his consent or knowledge; that he never had anything to do behind the bar.

It is very questionable whether the testimony in the ease called for a charge at all on the subject of a mistake made in good faith, but, even if it did, the special charge requested by appellant did not present the law on that subject, and, as stated above, the court did not err in refusing to give it, and the refusal to give the special charge which was requested presents no reversible error.

The judgment will therefore be affirmed.

On Motion for Rehearing.

The motion for rehearing in this case presents but one question, and that is whether the complaint and information, in effect, on their face charge a felony instead of a misdemeanor. The date the offense is alleged to have been committed in the complaint and information is that “heretofore on the 1st day of August in the year of our Lord one thousand nine hundred and nine, in the county and state, etc.,” then proceeds to charge an unlawful sale on that date by appellant R. V. Mealer to S. B. Scott in a certain common school district in the county of Dallas, Tex., after an election had been held in said district prohibiting the sale of intoxicating liquors therein, without stating the date od which the election was held. Prior to the act approved April 24, 1909, p. 356, it was a misdemeanor only to sell intoxicating liquors in any county or subdivision thereof where prohibition had been voted upon, carried, the election declared and published, putting it in force. The said act approved April 24, 1909, did not become effective anywhere in the state until on or after July 24, 1909. Under the law of this state that enactment was not in force, although it is a law on the statute book until put- in force in a given prohibition territory by an election thereafter held, declared, published, and thereby put m force. So that, while it is a law of the state, it is never effective anywhere until the election, etc., puts it in effect.

Our statute, in prescribing the requisites of an indictment and an information, requires that it shall state the date on which the defendant has committed an offense, and it has been uniformly held by this court and the Supreme Court when it had criminal jurisdiction, that the indictment or information and complaint must give the day, month, and year of the commission of the offense. Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 882, 96 Am. St. Rep. 801; Yallegas v. State, 66 S. W. 769; Coleman v. State, 62 S. W. 753; Thurman v. State, 45 Tex. Cr. R. 569, 78 S. W. 937; State v. Eubanks, 41 Tex. 291; State v. Slack, 30 Tex. 355; State v. Johnson, 32 Tex. 96.

It has likewise uniformly been held by this and the Supreme Court that the allegation of the date when am offense was committed is a matter of substance, and that it cannot 'be amended. Drummond v. State, 4 Tex. App. 150; Little v. State (App.) 19 S. W. 332; Hawthorne v. State, 6 Tex. App. 562; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 293, 4 S. W. 890; Whitley v. State, 56 S. W. 69; Sanders v. State, 26 Tex. 119.

A pleading both in criminal and in civil law Is measured by tbe allegation thereof never by tbe proof that may be introduced thereunder. Mr. Bishop, in discussing the allegation of time as to the sufficiency of an indictment, says: “From the proposition that the indictment on its face must disclose a prima facie case against the defendant, it results, among other consequences, that, in considering whether or not it is sufficient, the court will assume the time to he as stated therein," 1 Bish. New Crim. Proc. (4th Ed.) § 403.

It is true that it is the uniform holding of this court and of the Supreme Court that when an indictment or information charges that an offense has been committed on a particular date that proof can be introduced thereunder showing the commission of the offense at any time between the day of the filing of the indictment or information and the time prior thereto within the period of limitation of the offense. The only exception to this is that when an offense can be committed only on a given date or in a given period of time, such as a certain season of the year, or on Sunday, then the offense must be charged to have been committed on a date within said season or on a date which, is Sunday. It is unnecessary to cite the authorities to this effect, because there is and can be no doubt about this. If an allegation in an indictment or information is to be gauged or judged by the proof instead of by the allegation, then' any indictment which charges a misdemeanor could allege that it was committed at some time within a priod of two years prior to the day of the filing of the indictment, without alleging the day, month, and year, and that an indictment charging a felony, such as robbery, was committed at some time within 10 years prior to the day of the filing of the indictment without giving the day, month, and year. No such indictment could or would be sustained in this court.

As stated above, the offense in this case was charged to have been committed on August 1, 1909. We therefore know that it was a physical impossibility to have ordered, held, declared, and published for four weeks after prohibition had been carried an election putting the felony statute in effect in the district in Dallas county where this offense is alleged to have been committed, because it is alleged to have been committed August 1st, only seven days after the act of the 'Legislature was in condition to be put into effect in any prohibition territory. So that, as we know that the felony .statute could not have been in effect under the law ■within eight days after it became a law of the state, the information and complaint in this case did not charge a felony but charged a misdemeanor.

The case of Head v. State, 141 S. W. 536, in the cases of Hamilton v. State, 145 S. W. 348, and Meyer v. State, 145 S. W. 919, recently decided but not yet officially reported, has been correctly modified, after a thorough investigation of the questions and the authorities which are cited in these last two cases. We therefore adhere to the original opinion in this case and hold that the lower court did not err in overruling appellant’s motion to quash the indictment and in arrest of the judgment. The motion for rehearing herein will be overruled.

DAVIDSON, P. J.

I think the Head Case lays down the correct rule. I have expressed some views for the faith that is in me in Hamilton’s Case, 145 S. W. 348, recently decided.  