
    HORAK v. STATE.
    (No. 7363.)
    (Court of Criminal Appeals of Texas.
    Oct 17, 1923.)
    Criminal law &wkey;>13 — Manufacture for medicinal purposes without permit not penal offense.
    Under Dean Daw, § 2b (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a2), which provides that the manufacture, sale, etc., of any of the liquors mentioned therein for medicinal purposes, and after a permit has been duly authorized and granted, shall not be punishable, and Vernon’s Ann. Pen. Code 1916, art. 3, declaring no person shall be punished for any act or omission, unless made a penal offense and a penalty affixed thereto, the manufacture of intoxicating liquor for medicinal purposes without a permit is not a penal offense, since no penalty therefor has been affixed.-
    <E5=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .
    Appeal from District Court, Milam County; Prentice Oltorf, Special Judge.
    Gabriel Horak was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    B. P. Matoeha, of Cameron, for appellant.
    A. J. Lewis, Co. Atty., of Cameron, and R. G. Storey, Asst. Atty. Gen., for the State.
   BALTIMORE, J.

Appellant was convicted in the district court of Milam county of the offense of manufacturing intoxicating liquor, and his punishment fixed at 18 months in the penitentiary.

As we understand this record, it is made to appear without dispute that appellant manufactured the liquor as charged in the indictment. He testified that he made it for medicinal purposes only, and this was his.defense. Our Constitution and the statutes enacted in accordance therewith forbid the manufacture of intoxicating liquor, except for medicinal, etc., purposes. Appellant recognized that the burden of bringing himself within one of the exceptions was on him, and he undertook to do so by testimony, and on the trial, after excepting to the main charge, for not submitting the issue that he manufactured the liquor for medicinal purposes, he asked the following special charge:

“Gentlemen of the jury, you are charged that if you believe from the evidence that the defendant manufactured spirituous liquor capable of producing intoxication, as alleged in the indictment, but you further believe from the evidence beyond a reasonable doubt that he manufactured same for the sole purpose of using same as medicine for himself for the relief of pain in his lungs, then you will acquit the defendant, and so say by your verdict.” .

This special charge was refused, and exception taken. It is urged by the state that such charge is not applicable, and that the court should not have instructed the jury with regard to this defensive issue, because appellant admitted on cross-examination that he had no permit to engage in the manufacture of liquor, and it is insisted by the state that hence his claim of manufacture for medicinal purposes, even if believed by the jury, would avail him nothing.

The acts of the Thirty-Sixth Legislature known as the Dean Law do not make any act penal for lack of a permit. The Thirty-Seventh Legislature, by the terms of chapter 61, Acts First Galled Session, amended sections 1 and 2 of the original Deán Law, and added certain new sections (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.). Amended sections 1 and 2 (articles 588%, 588%a) forbid the manufacture, etc., of intoxicating liquor and of liquor containing 1 per cent, of alcohol by volume. Section 2a of the amendment (article 588% al) provides that it shall not be unlawful for any person to manufacture, etc., such liquor for medicinal, mechanical, scientific, or sacramental purposes. Section 2b of said amendment (article 588%a2) is as follows:

“The manufacture, sale, - barter, exchange, transportation, exporting, soliciting, taking orders for, furnishing, and possessing of any of the liquors mentioned in this chapter, if done for medicinal, mechanical, scientific, or sacramental purposes, and after a permit has been duly authorized and granted by the proper authorities, shall not be punishable under the terms of this chapter.”

Manifestly this section does not create the offense of manufacturing, etc,, liquor without a permit. If it does, what is the penalty? Where is the penalty clause? Article 3 of our Penal Code declares that no person in this state shall be punished for any act or omission, unless same is made a penal offense and a penalty affixed thereto by the written laws of this state. In the entire body of our law, including the Dean Act and the amendment of the Thirty-Seventh Legislature referred to, we confess our inability to find any written statute making it penal, or fixing the punishment for the manufacture of intoxicating liquor without a permit. Section 2b, above quoted, Is merely negative, and cannot in any sense be beld to be an affirmative enactment, making sucb manufacture without a permit punishable either as a misdemeanor or a felony. The insertion therein of the words “and after a permit has been duly authorized and granted,” etc., amounts to nothing, and cannot be held to justify a prosecution for such manufacture without a permit, in view of the fact that nowhere else can there be found any statute forbidding under pains and penalties such manufacture without first obtaining such permit.

Whether the liquor in question was in fact made for medicinal purposes must be settled by the jury under the facts of the case. The legislature has not seen fit to define what is meant by “medicinal purposes,” as expressed in the constitutional amendment, or any of the statutes putting same into force. We take it that the state is not bound to accept as true the claim of one who makes liquor, and says that it is so made for medicinal purposes, and that in any such case the state would be justified before the jury in contesting such claim, and introducing' proof of the fact that no existing illness is shown, and that no satisfactory proof is made of the fact . that such making was for medicinal purposes; nor would the jury be bound by any such claim, unless same was supported by satisfactory evidence. However, until the Legislature lays down some definition of what it means by the use of the terms of exemption set out in the statute, we are compelled to hold that, in a case whose facts raise the issue, the court should submit same to the jury, and that upon the court’s refusal to do so this court must reverse.

We are not in accord with the other'•contentions made on behalf of the appellant, but, for the refusal of the special charge mentioned, the judgment must be reversed, and the cause remanded; and it is so ordered.  