
    McNEIL v. STATE.
    (No. 6870.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    1. Indictment and information 11 (3) — Exceptions in statute which are descriptive of offense must be negatived.
    When the statute, in defining an offense, contains exceptions or provisos which constitute a part of its description, an indictment charging the offense must negative such exceptions or provisos.
    2. Intoxicating liquors <®=>222 — Indictment for manufacture drawn before amendment of November 15, 1921, took effect must negative exceptions.
    Where the indictment was returned before Acts 36th Beg. (1919) 2d Called Sess. c. 78, § 1, prohibiting the manufacture of spirituous liquor, except for medicinal, mechanical, scientific, or sacramental purposes, was amended by Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.), it was necessary for the indictment to negative the exceptions, though the burden was on accused to show that he came within one of the exceptions.
    3. Criminal law —Amendatory statute does not control where it took effect after indictment.
    An indictment cannot -be sustained under the provisions of an amending statute which did not take effect until after the indictment was returned.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    H. C. McNeil was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed, with directions to dismiss the prosecution.
    Stone, Miller & Guleke, of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor. Punishment I was assessed at confinement in the peniten-1 tiary for four years.

The indictment was returned November 5, 1921, and contained eleven counts, all charging the date of the alleged offense to have been June 22, 1921. Acts 37th Leg. c. 61, p. 233, 1st Called Sess. 1921 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), amendatory of sections 1 and 2, c. 78, of Acts 2d Called Sess. 36th Leg., did not become effective until November 15, 1921, so the prosecution of necessity proceeded under the law as it was enacted by the Thirty-Sixth Legislature. Section 1 of that- act prohibited the manufacture of spirituous liquor capable of producing intoxication, “except for medicinal, mechanical, scientific or sacramental purposes.” The “exceptions” were embraced in section 1, and were a part of the definition of the offense.

When the statute in defining an offense contains exceptions or provisos which constitute a part of its description, it is necessary to negative such exceptions or provisos for the reason that the offense may not be described without doing so. For many authorities see Branch’s Ann. P. 0. § 510. Following the well-established authorities, we held in Robert v. State (Tex. Cr. App.) 234 S. W. 89, that it was necessary in an indictment to negative the exceptions in charging an offense nuder the Acts of the Thirty-Sixth Legislature, but further held that while, because of the wording of the act, it was necessary for the state to negative the exceptions, still the burden was on accused to show he fell within one of the exceptions, thus modifying our former holding that the burden in this regard was on the state.

The second count in the indictment in the instant case (and the only one submitted to the jury) failed to negative the exceptions, but alleged only the manufacture of spirituous liquors capable of producing intoxication. In submitting the case to the jury the trial judge followed the allegations, and. made no mention of the exceptions either in defining the offense or making application of the law.

We apprehend the count in question must have been drawn under the amended law of the Thirty-Seventh' Legislature, but, that amendment not being in effect when the offense was alleged to have been committed, nor even when the indictment was found, the former law would control, and we are therefore constrained to hold that the count upon which appellant was convicted was fatally defective, and charged no offense against the law as then written.

It follows that the only order this court can make is to reverse the judgment of the trial court, and direct a dismissal of the prosecution. 
      
       other cases see same topic and KEY-NUMBER in all Key-Nombered Digests and Indexes
     