
    MOLLENKOPF v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1912.)
    1. Intoxicating Liquors (§ 239) — Wrongful Sale — Pursuing Business in Prohibition Territory — Intent.
    Pen.' Code 1911, arts. 45, 47, provide that no act done by accident is an offense except ■where there has been a degree ’of carelessness or negligence which the law regards as criminal, but that the mistake of fact which will excuse 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 that it must also be such a mistake as does not arise from a want of proper care on the part of the person committing the offense. Held, that mere evidence in a prosecution for engaging in the business of selling intoxicating liquors that accused did not know that the substance she sold was intoxicating was insufficient to raise the issue that she acted by accident, in the absence of further proof that she had used care to ascertain whether it was intoxicating or not before offering to sell it.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§. 331-347; Dec. Dig. § 239.]
    2. Intoxicating Liquors (§ 239) — Wrongful Sale — Engaging in Business — Defenses — Instructions.
    Where, in a prosecution for engaging in the business of selling intoxicating liquor in prohibition territory, the state’s witnesses testified that they bought intoxicating wine from accused, while she claimed that the beverage was grape juice made by boiling the juice of the grape, and was not intoxicating, she was entitled toi an affirmative instruction- that if the jury believed from the evidence that the beverage was grape juice, and would not intoxicate, or if they had a reasonable doubt of that fact, they must acquit.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    3. Intoxicating Liquors (§ 239) — Wrongful Sale — Engaging in Business — Business and Occupation.
    Tn a prosecution for engaging in the business of selling intoxicating liquors in prohibition territory, the court charged that, to constitute the engaging in the occupation or business of selling intoxicating liquors, it was necessary to prove that accused made at least two sales of intoxicating liquor during December, 1910, and that by the term “business and occupation” was meant a calling, trade, or vocation which one engages in to make a living or obtain wealth. Held, that such instruction was misleading, in that it authorized an inference that proof of two sales in and of itself would constitute a business or occupation, and that the latter part of the charge was a definition more burdensome on the state and more favorable to accused than required by the statute creating the offense, it being only essential, to establish engaging in the business or pursuing the occupation of selling whisky, that the state prove that accused kept in her possession whisky for sale, and that she actually made two sales within the time specified in the statute.
    [Ed. Note. — For other cases, .see Intoxicating Liquors, Cent Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from District Court, Eastland County ; Thomas L. Blanton, Judge.
    Mary Mollenkopf was convicted of pursuing the occupation of selling intoxicating liquor in prohibition territory, and she appeals.
    Reversed and remanded.
    J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER,' J.

Appellant was prosecuted and convicted of pursuing the occupation or business of selling intoxicating liquor in prohibition territory, and her punishment assessed at two years’ confinement in the state penitentiary.

Ed Houston testified: “On or about the 18th day of December, 1910, I bought some wine from Mary Mollenkopf. 1 pronounced that wine intoxicating. I. bought about two or three gallons, paying her $2 a gallon. I drank the wine, and it intoxicated me.”

C. P. Houston testified: “On or about the 20th day of December, 1910, I bought some wine from Mary Mollenkopf. I bought a gallon, and paid her $2 for it. I also bought some wine from her about December 26th, getting a gallon and paying her $2 for it. I think the wine I bought from her was intoxicating. I drank some of it. It seemed to intoxicate me to some extent. About the best I could express it, it made me dizzy.”

This was all the testimony offered in behalf of the state, and, if the defendant had also rested her case, we would feel inclined to sustain her contention that the evidence would not sustain the conviction — that it did not show she was engaged in the business or occupation of selling intoxicating liquors. However, defendant herself took the stand, and on cross-examination admitted she had sold considerable quantities of the wine or grape juice as she called it, and taking her testimony, in connection with that offered by the state, the testimony would support a verdict that she was engaged in the business of selling this liquor for profit. Among other things, she testified: “Mary Mollenkopf is my name. I live seven miles south of Cisco. I was born in Germany. I am 45 years old. I have been in this country 21 years. I am now, at this time, engaged in farming, I have been farming here in Eastland county about five years. Along about December of 1910, at that time, I was engaged in picking cotton. I was farming, gathering my crop. At that time I made a living farming. I raised com and cotton, and had a little vineyard, and I sold some grapes. At that time I had to do the farm work myself. I didn’t have anybody else to do it. I picked cotton and hoed the cotton and everything. I can’t do the plowing. I am too old. Along about that time, I did some of the plowing. I helped to haul off and market my cotton and things of that kind. The farming out there was my dependence for making a living. I had no other means of getting a living. I did hot sell any intoxicating liquors. Ed Hous-toa came to me along in July, and asked me if I could make Mm some grape juice. I told Mm I could make it, and that he could get it if he would come after it. I let him. have it. He paid me $2 a* gallon for it. Grape juice is made by heating. It is not intoxicating. When I let him have this, it was not intoxicating. I remember the Cap Houston transaction. It was the same like Mr. Ed. Cap Houston came to me and told me to ¡make him some grape juice, so many gallons, and he came after it, and he didn’t pay me for it. I didn’t let him have the next one. I let him have it two times. He paid me $2 for one gallon, and the next time he came I didn’t let him have it He didn’t pay me that next one. When I let him have that grape juice, it was not intoxicating, because heated juice cannot be intoxicating; that is, the heated stuff. I did not intend to violate the law in any respect. I did not intend to violate the laws of my country.” Thus the issue was squarely presented whether it was wine she sold or grape juice; whether or not it was intoxicating. The state’s witnesses said it was wine and would intoxicate. She said it was grape juice, and would not intoxicate.

The record being in this condition, appellant asked the court to give a number of special charges, but we do not deem it necessary to take up and discuss each of them, but rather treat the issues they seek to have presented.

In the first instance appellant asked the court to instruct the jury that, even though they believe the beverage she sold was intoxicating, yet if they believed, or had a reasonable doubt of the fact, she did not know it was intoxicating, to acquit her, and cites us to articles 45 and 47 of the Penal Code, in which it is provided that “no act done by accident is an offense except where there has been' a degree of carelessness or negligence which the law regards as criminal. * * * The mistake as to fact which will excuse 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 also must be such a mistake as does not arise from a want of proper care on the part of the person committing the offense.” We do not think the evidence brings this case within the purview of the meaning of those articles of the Code. Appellant made a sale of the article she intended to sell, and the fact she states that she did not believe it would intoxicate is not in and of itself enough to suggest this issue. She knew it was an offense to sell intoxicating liquor in Eastland county, and the evidence, to raise this question, should have gone further, and shown that she had used “proper care” to ascertain whether or not it was intoxicating before offering to sell it It should show she made proper investigation, and not merely relied on'her belief in the matter. Coleman v. State, 54 Tex. Cr. R. 402, 112 S. W. 1049, 130 Am. St. Rep. 896.

The other issue raised by the special charges is one of more doubt. Appellant testified that the beverage was grape juice, was made by boiling the juice of the grape, and that it would not intoxicate. It is a matter of common knowledge that in all parts of our state there is an article of commerce sold as a beverage known as grape juice that has no intoxicating qualities. As to its ingredients, or the mode and manher of its manufacture, we have no information. The state’s witnesses swore this was wine and would Intoxicate. Appellant testified positively it was not wine, but grape juice, and manufactured by boiling the juice of grapes, and would not intoxicate. We are inclined to the .opinion that she had a right to have this defense affirmatively presented to the jury for their determination. The court did not do so, and refused the special instructions presenting this issue. The jury should have been told that if they believed from the evidence that the beverage sold was grape juice and that it wquld not produce intoxication, or they had a reasonable doubt of that fact, to acquit her. The issue in the case was whether or not the beverage was intoxicating. She admitted making the sales as alleged, but contested this issue, and it should have been pertinently presented to the jury for their determination, and a failure to do so will necessitate a reversal of the case. And, as the case will be reversed on this issue, we would call attention of the court to another part of his charge whereby the jury may have been misled.

In defining “business” or “occupation,” the court instructed the jury: “In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors, within the meaning of the law, it is necessary to prove that the defendant made at least two sales of intoxicating liquor in Eastland county, Tex., during the month of December, 1910. By the term ‘business’ and ‘occupation’ is meant a calling, trade, or vocation which one engáges in for the purpose of making a living or obtaining wealth.” It is insisted that this charge is confusing and misleading, and the jury would infer that proof of two sales would in and of itself constitute a business or occupation. The latter part of this charge is a definition more burdensome upon the state and more favorable to defendant than required under tMs act of the Legislature. Fitch v. State, 127 S. W. 1046. In the Fitch Case the question is discussed at length ably, and the charge, if it thus defined “business” or “occupation,” and then followed it up by an instruction that if the jury believed one engaged in the business and made two sales, etc., would not be subject to criticism. On another trial a proper definition of “occupation” or “business” should be given without reference to tlie number of sales it would take to constitute one engaging in the occupation, and the jury told if a person engaged in this business or occupation, and made two sales, they would be guilty. In other words, the burden is upon the state to prove, first, that the person charged with the offense is engaged in the business and occupation of selling intoxicating liquors, and this may be proven by facts or circumstances the same as proving that a person was engaged in any other character of business, and then prove, in ad•dition to this, that two sales of intoxicating liquor ¡had been made to persons named in the indictment. There are two facts to be proven under the law defining this offense, ■and that is a person is engaged in the business, and the other is that such person made two sales while engaged in such business. They may be isolated sales, if one is proven to be engaged in that business or occupation by other facts and circumstances. The law so provides. In some cases two sales, with other facts and circumstances in the case, may authorize a jury' to find that a person was engaged in that business, while in another ease two sales, with no other facts or circumstances in the case, may not justify such a finding. Each case must stand upon the evidence in that case. The evidence in this case would support a finding that, if the beverage sold was intoxicating, the appellant made many sales and was engaged in the business of selling it, and this instruction, although subject to criticism, would not alone present reversible error, but, inasmuch as the case will be reversed on other grounds, we call attention to it that it may be eliminated on another trial.

We do not deem it necessary to discuss the other questions raised, as the opinion herein rendered will indicate the proper disposition of them.

The judgment is reversed, and the cause is remanded.  