
    REEVES v. STATE.
    (No. 5859.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1921.)
    1. Constitutional law <@=26 — Intoxicating liquors <&wkey; 17 — Legislative power to make act penal not limited to constitutional permission.
    The power of the Legislature to make a given act penal is not limited to the permission of the Constitution, but exists where not specifically forbidden; and transporting, receiving, and possessing of intoxicating liquor may be made an offense although not named and forbidden by Const, art. 16, § 20.
    2. Intoxicating liquors <&wkey;l7 — Law forbidding transporting, etc., intoxicating liquor hela constitutional.
    Const, art. 16, § 20, as amended, prohibits the manufacture, sale, barter, and exchange of intoxicants except for certain purposes, and authorizes the Legislature to enact laws to enforce said section, and a law forbidding the transporting, receiving, or possessing intoxicating liquor would aid in enforcing and making more effective such constitutional section and is authorized.
    3. Intoxicating liquors &wkey;>17 — Legislature may make penal the sale of liquor containing less than one per cent, of alcohol.
    Constitution held, not to forbid the Legislature from making penal the sale for beverage purposes of liquor containing less than 1 per cent, of alcohol or prohibiting the transportation, possession, or delivery of such liquors.
    4. Intoxicating liquors <@=>222 — Indictment under Dean Law for possessing, etc., must negative excepted uses.
    An indictment under the Dean Law, charging unlawful transporting, receiving, and possessing of liquors capable of producing intoxication but failing to state that such was not for medicinal, mechanical, scientific, or sacramental purposes which are excepted by the statute, is fatally defective.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Harry Reeves was convicted of transporting, receiving, and possessing intoxicating liquor, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Hart & Maberry, of Mineóla, and C. E. Florence and Maberry & Maberry, all of Gil-mer, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Upshur county of transporting, receiving, and possessing intoxicating liquor and his punishment fixed at one year in the penitentiary.

An interesting question is raised by appellant which we will notice, viz., that transporting, receiving, and possessing intoxicating liquor not being named and forbidden in amended section 20, art. 16, of our Constitution, it is beyond the power of the Legislature to make sueb act penal. It is also contended that liquor containing only 1 per cent, alcohol is a nonintoxicant, and inasmuch as the said amended section 20 only prohibits the sale of intoxicants, the Dean law, infra,in so far as it forbids the sale of liquor with alcoholic content of 1 per cent, is unconstitutional as going beyond the forbiddance of said amendment. The power of the Legislature of this state to make a given act penal is not limited to the permission of the Constitution and exists in all cases except where specifically forbidden by the terms of that instrument. Amended section 20, supra, prohibits in terms the manufacture, sale, barter, and exchange of intoxicants in this state except for certain purposes, and authorizes the Legislature to enact laws to enforce- said section. No argument is needed to make it clear that a law forbidding the transporting, receiving, or possessing of intoxicating liquor would be in aid and in furtherance of, and make more effective the prohibition of, the illegal sale and manufacture of such liquor; likewise, that a law forbidding the sale of beverages containing any alcoholic content would have the same tendency. With transportation, possession, and delivery made illegal, the manufacture and sale illegally of such liquors would be hindered and made more difficult. Likewise, forbidding by law the sale, manufacture, and transportation, etc., of liquor of less alcoholic content than would be necessary to make it an intoxicant might materially reduce the insidious use and effect upon the body and appetite of the citizen, of those liquors whose continued use would ultimately demand stronger potations; and thus the manufacture and sale of intoxicants would be hindered and made more difficult.

We are not discussing the question as to whether liquor of 1 per cent, alcoholic content is intoxicating.

We find nothing in our present Constitution which forbids the Legislature making penal the sale of liquor for beverage purposes containing less than 1 per cent, alcoholic content, nor forbidding them to make illegal the transportation, possession, or delivery of such liquors.

The indictment herein contained two counts, and the conviction was had under the first, in which it was simply charged that on December 10, 1919, the appellant did unlawfully transport, receive, and possess spirituous, vinous, and malt liquor capable of producing intoxication. Appellant made his motion to quash, based on the failure of the pleader to allege that such possession, receiving, and transporting was not for medic■inal, mechanical, scientific, or sacramental purposes. We think the trial court committed error in overruling this motion.

This prosecution was under what is known as the Dean Law, Act Second Galled Session, 'Thirty-Sixth Legislature, p. 228. The first section of said act penalizes one who transports, receives, or possesses “spirituous, vinous or malt liquors, * * '* capable of producing intoxication, * * * except for medicinal, mechanical, scientific or sacramental purposes.” It thus appears that in the body of the act — the section defining the offense, and as a necessary part of such definition — it is . declared that a certain thing is penal only when same falls outside certain named exceptions. Under our local option statute the sale of liquor was made penal by one article, and in a later article instances were provided in which such liquor might be sold without criminality. The same situation prevails in regard to our law regulating the carrying of pistols; also that with regard to laboring on Sunday, as well as others. There seems reason and precedent for holding that in these illustrative cases just mentioned and those similar, where the exception is in a separate article, that it was not the intent of the lawmakers to make the negative of the exception a necessary part of the definition of the offense, and therefore that it was not necessary to negative such exceptions in an indictment charging the violation of such law. We have been unable to find any well-considered case, however, which supports the proposition that when the exception is written into what has been called the enacting part of the law — that is, in the very definition of the offense — that an indictment need not negative such exception. We think it should.

The need of negativing the exception in the indictment in a prosecution of one who practices medicine or does any other act for which a license or permit is required, for doing such act without such permit or, license, or in the prosecution of one who engages in any business for which license is required for carrying on such business without having same, or one who plays a game of cards not in a private residence or who carnally knows a female under the age of consent not his wife, are but illustrations which might be lengthened without adding force to our opinion that the exception in such case must be negatived in the indictment. As stated, we think reason and precer dent support this position, and that this is a fatal defect in the instant indictment.

We do not deem it necessary to discuss any of the other matters raised by appellant.

For the defect in the indictment mentioned, the cause is reversed, and the prosecution ordered dismissed. 
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