
    GILBREATH v. STATE.
    (No. 10605.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    Rehearing Denied. June 8, 1927.
    1. Intoxicating liquors <©=>159(2) — Knowledge is not essential element of offense of giving liquor to minor (Pen. Code 1925, art. 693).
    In prosecution for giving intoxicating liquor to minor, instruction that to be convicted defendant must have knowingly given intoxicating liquor to minor held properly refused, since Pen. Code 1925, art. 693, omitted element of knowledge which was part of Vernon’s Ann. Pen. Code 1916, art. 1054.
    2. Intoxicating liquors <§=236(11) — Evidence held to support conviction for giving liquor to minor.
    In prosecution for giving liquor to minor, evidence held, sufficient to justify conclusion that defendant was party who gave whisky to prosecuting witness.
    On Motion for Rehearing.
    3. Intoxicating liquors <§=I59(2)— Mistake of fact as to minority is available as defense in prosecution for giving liquor to minor (Vernon’s Ann. Pen. Code 1925, arts. 41, 693).
    Though it is unnecessary under Vernon’s Ann. Pen. Code 1925, art. 693, for state to prove that defendant in prosecution for giving liquor to minor knew that prosecuting witness was minor, mistake of fact is available as defense under article 41.
    4. Intoxicating liquors <§=239(2) — Refusal to instruct on issue of mistake of fact as to minority held not error in prosecution for giving liquor to minor.
    In prosecution for giving liquor to minor, refusal to instruct on issue of mistake of fact held not error, where defendant gave liquor to prosecuting witness without knowledge of age or appearance, and without effort by inquiry, observation, or otherwise to ascertain whether he bor'e appearance of youth.
    Appeal from Rains County Court; J. S. Smiley, Judge.
    Andy Gilbreath was convicted of giving liquor to a minor, and he appeals.
    Affirmed.
    Bozeman & Cathey, of Quitman, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in county court of Rains county for giving liquor to a minor; punishment, fine of $25.

There seems little question of the fact that the prosecuting witness, a minor, was given intoxicating liquor upon the occasion mentioned. He testified positively that appellant gave it to him. We will discuss the complaints made by appellant on appeal in the order in which they appear in the brief.

Appellant insists that the court should have given his special charges Nos. 1, 2, 3, 4, and 5, the refusal of which is complained of in bills of exception Nos. 4, 6, • 7, 8, and 9. Said charges in slightly different language seek to have the jury told that before appellant could be convicted in this case he must have knowingly given intoxicating liquor to the witness Adair. In support of his contention in this regard he cites the case of Earnest v. State, 83 Tex. Cr. R. 41, 201 S. W. 175, and other authorities therein mentioned. Without’ questioning the correctness of the cases cited, attention is called to the fact that article 1054, Vernon’s Ann. Pen. Code 1916, which was in force at the time the opinion was handed down in the Earnest Case, supra, and which was the law under which the Earnest Case, supra, was prosecuted, provided that any person who shall knowingly sell or give or deliver, etc., any intoxicating liquor, shall be punished. In codifying the Penal Oode which was adopted by the 39th Legislature, said article 1054, supra, was omitted, and our present statute, article 693 of the Revised Criminal Statutes of Texas (Pen. Code 1925), omits the word “knowingly” and provides simply that any person who shall give or deliver >or cause to be given or delivered, etc., to any minor, any intoxicating liquor, shall be punished by a fine of not less than $25 nor more than $100. It will thus be seen that the element of knowledge is no longer a part of the definition of this offense, and it follows that the special instructions referred to were properly refused.

Appellant’s bill of exceptions No. 5 brings forward complaint of the charge of the court which was excepted to beeausé it ignored the defensive theory and did not affirmatively submit same. We are not apprised in any way as to what the defensive theory was, and therefore cannot measure the correctness of the exception.

Appellant insists that the testimony does not support the conviction. Clarence Adair testified that appellant and one Pick Dickson came to the place where he was about 8 or 9 o’clock in the evening. Witness said some one called his name and told him to come out there. He went. The person under the steering wheel of the car handed him a fruit jar, and he took a drink of the contents, which was whisky. Asked as to who the person was under the steering wheel, he said it was the defendant. On cross-examination he gave various reasons why he thought the party handing him the whisky was appellant and not the other occupant of the car, who was well known to witness. On redirect examination he again said that it was the defendant who gave him the whisky. A deputy sheriff testified that he saw the defendant and another man in a car on the night in question, and that one of them threw a fruit jar out of the car as the officer approached and that it contained whisky. He also said he smelled liquor on appellant’s breath that night.

We are unable to say that there was not sufficient testimony before the jury in this case to justify them in concluding that appellant was the party who gave the whisky to the witness Adair. The witnesses were before the jury and they heard the testimony, and the trial judge who also saw the witnesses and heard the testimony refused a new trial in this case.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The offense is denounced in the Acts of 1909. In article 1054, Vernon’s Tex. P. 0. 1916, it is declared that one who “knowingly” gives intoxicating lhp uor to a minor shall be guilty. As the offense is,now defined, the word “knowingly” is eliminated. See article 693, Vernon’s Tex. P. C. 1925. It was therefore not incumbent upon the state to prove that thq appellant knew that Adair was a minor. To defend upon the ground of lack of knowledge, it would be necessary that the facts bring the transaction within the statute upon the subject of mistake, wherein it is declared that a mistake of fact not arising from a want of proper care may excuse the commission of a criminal act. See article 41, P. C. 1925. In construing the statute in which the word “knowingly” is absent, it has been held under the revision of the Code that a mistake of fact was nevertheless available as a defense. See Simpson v. State, 58 Tex. Cr. R. 254, 125 S. W. 398, touching the presence of a minor in a pool hall; Reed v. State, 53 Tex. Cr. R. 4, 108 S. W. 368, 126 Am. St. Rep. 765; Covington v. State, 51 Tex. Cr. R. 48, 100 S. W. 368; Patrick v. State, 45 Tex. Cr. R. 588, 78 S. W. 947, applying to the sale of intoxicating liquor. In Vaughn v. State, 86 Tex. Cr. R. 255, 219 S. W. 209, a number of precedents are cited. The case involved the alleged violation of the Pure Food Law (Pen. Code 1911, arts. 698-716), from which, in the amendment of the statute, .the word' “knowingly” had been omitted. It was said:

“The omission of this element in the new statute * * * implies an intent that in fu•ture prosecution it should not be incumbent upon the State to allege or prove guilty knowledge with reference to the affirmative acts prohibited.” Vaughn v. State, 86 Tex. Cr. R. 258, 219 S. W. 207.

See Ruling Case Law, vol. 11, p. 1128; also, notes in Vernon’s Tex. U. C. 1925, vol. 1, pp. 40 and 41.

At night, two men in an automobile presented themselves at the place of abode of Clarence Adair. One of them called him. He went to the automobile and was handed a jar of whisky. He drank some of it. He recognized one of the men as Dickson. He did not know the appellant. According to the judgment of the witness, the voice of the person calling him was not that of Dickson. The appellant did not testify, but introduced evidence tending to combat the idea that he was an actor in the • transaction at all. That theory was presented to the jury and determined in favor of the state. Adair was 20 years of age, weighed 150 pounds, and was 5Yz feet tall.

Appellant contends that because of the size, weight and appearance of Adair, an instruction should have been given to the jury to acquit the appellant if he did not know that Adair was a minor, and it is upon the refusal to instruct the jury upon the subject of the appellant’s want of knowledge that the motion under discussion is founded. The transaction took place in the dark. The personal attributes of Adair as denoting youth were unknown to the appellant. He delivered the whisky to a stranger without knowledge of his age or appearance, and without an effort, by inquiry, observation, or otherwise, to ascertain whether the person receiving the whisky bore the appearance of a youth or one of maturity. To excuse him, he must not only have been unaware of the youth of Adair, but there must be facts upon which the jury might determine that the appellant’s ignorance of the age of. the witness was not due to his failure to exercise proper care. In the light of the evidence, this court is not warranted in declaring that the learned trial judge committed error in refusing to instruct the jury on the issue of mistake of fact for the reason, as above stated, that .there is no cogent evidence from which the jury might have determined that the appellant used proper care to inform himself touching the age of the person with whom he was dealing.

The motion for rehearing is overruled. 
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