
    WALKER v. STATE.
    (No. 8212.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.
    Rehearing Denied June 11, 1924.)
    1. Intoxicating liquors @=3222— Indictment fpr transporting need not negative exceptions.
    Under 1921 amendment of Dean Law, removing exceptions from enacting clause to separate section, indictment for transporting intoxicating liquor need not negative exceptions.
    2. Constitutional law @=>48 — Rules of procedure enacted by Legislature upheld unless counter to broad principles declared in Constition.
    Rules of procedure enacted by Legislature should be upheld by courts, unless counter to declarations of Constitution, which should lay down broad principles, leaving matters of procedure applicable thereto to Legislature.
    3. Intoxicating liquors @=!3— Act placing burden on accused to bring himself within statutory exceptions not unconstitutional.
    Constitutional declaration against transportation of intoxicating liquor, except for medicinal and certain other purposes, is not contravened by prohibitory act placing burden on accused to bring himself within exceptions, by placing them in other sections than enacting clause.
    4. Criminal law @=>789(3) — Instruction requiring defendant to show transportation of liquor for medicinal purposes by preponderance of evidence held reversible error.
    In prosecution for transporting intoxicating liquor, charge that burden was on defendant to establish, by preponderance of evidence, that it was transported solely for medicinal use, as claimed by him, held reversible error as subverting doctrine of reasonable doubt.
    5. Criminal law @=>789(4) — Requested charge on effect of reasonable doubt as to whether liquor was being transported for medicinal purposes held erroneous.
    In prosecution for transporting intoxicating liquor, requested charge that, if jury had reasonable doubt as to whether liquor was being transported for medicinal purposes, it should acquit, held erroneous as stating opposite of what was apparently intended.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    O. E. Walker was convicted of transporting intoxicating liquor, and appeals.
    Reversed and remanded.
    Frank Oltorf, of Marlin, and Burgess, Owsley, Storey ■& Stewart, of Dallas, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

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

The indictment charges the commission of this offense to have occurred about the 3d of March, 1923, and the proof corresponds with the allegation. The exceptions contained in the statute were not negatived in the indictment. It is insisted that for such failure the indictment is defective. We do not think so. By the amendment to the Dean Law effective in November, 1921, the exceptions were removed from what is called the enacting clause of the act and were put in a separate section; The unbroken line of decisions of this court since that time have held it not necessary to negative the exceptions in an indictment charging a violation of the liquor laws of this state. This fact is conceded, but the soundness of the proposition is now challenged again. Hewitt v. State, 25 Tex. 722, and State v. Duke, 42 Tex. 462, are chiefly relied on. The prosecution involved in the Hewitt Case was for pursuing a certain occupation without a license, and the court was discussing the proposition as to whether the Legislature could enact a law regarding indictments under which the indictment in question could be sustained when it omitted to allege that tbe occupation pursued by tbe accused was with-' out baying a license. We think tbe conclusion arrived at was eminently correct and that tbe omission of ,such allegation was fatal. The gist of tbe offense was tbe failure to obtain license. To allege that the accused pursued tbe occupation merely, and to omit that which constituted tbe only criminal element in tbe offense, was clearly erroneous. It would hardly seem necessary to analyze this case to show its lack of application to the question involved in tbe instant case. Tbe Duke Case, supra, was a prosecution for pistol carrying, and it appears upon examination that tbe statute in force at tbe time of tbe commission of the offense then passed upon contained certain exemptions as a part of its enacting clause, so that the court held in several opinions banded down about the time of the Duke Case, supra, that tbe indictment should negative tbe exceptions. Similar holdings appear in tbe opinions of this court in reference to tbe Dean Law prior to tbe amendment in 1921. Subsequent to tbe rendition of tbe opinion in tbe Duke Case, tbe Pistol Law of this state was amended and the exceptions placed in a separate article, since which time it has béen upiformly held that indictments for violations of said statute need not negative tbe exceptions. Lewis v. State, 7 Tex. App. 567; Zallner v. State, 15 Tex. App. 23.

We do not think there is any expression in tbe Burciago Case, 88 Tex. Cr. R. 576, 228 S. W. 562, or tbe Mayo Case, 92 Tex. Cr. R. 624, 245 S. W. 241, which' in any way sustains appellant’s contention in this regard. Nor do we find application of tbe other authorities cited and discussed by appellant. Tbe general rule seems to be that tbe Constitution shall lay down and announce tbe broad principles, but that matters of procedure applicable to those things contained in tbe Constitution are left to tbe Legislature, and unless tbe law as laid down by tbe latter, in outlining procedure, in some way runs counter to tbe declarations of tbe Constitution, such rules of procedure should be upheld by tbe courts. A declaration by the Constitution that one shall not transport intoxicating liquor except for medicinal, etc., purposes would be in no way contravened or hindered by legislative declaration in laying down a rule of procedure that tbe burden of proof should be upon one found transporting such intoxicating liquor, to bring himself within the exceptions named, nor by legislative or judicial declaration that the exceptions need not be negatived in the indictment. We adhere to the doctrine heretofore uniformly announced, i. e., that the Legislature, by placing the exceptions in a separate section from what is called the enacting clause, may obviate the necessity for negativing such exceptions in the indictment.

This case must be reversed for the error of the charge of the learned trial judge as to the burden of proof. We quote from the charge given to the jury:

“In this connection, you are charged that if it be established by the evidence beyond a reasonable doubt that spirituous liquor capable of producing intoxication was transported, then the burden of proof would be upon the defendant to establish by a preponderance of the evidence that it was transported solely for medicinal use.”

Appellant was on trial for transporting liquor. He "claimed that he was transporting it for medicinal purposes only. In such case it was error to require him to show by a preponderance of the testimony that he was transporting it for said excepted purpose. Such an announcement in the charge of the court subverts the doctrine of reasonable doubt. When there is testimony upon the trial raising the issue of the transportation, etc., of liquor for one of the excepted purposes, the jury should be told that unless they believed beyond a reasonable doubt that such transportation, etc., was not for the excepted purpose relied upon in the particular ease, they should return a verdict of not guilty.

Attention is called to a requested charge apparently relied on as presenting this same proposition, but which we do not think presents it correctly. Said charge is as follows :

“In the event, if you have a reasonable doubt as to whether the liquor referred to in the evidence was being transported by defendant for his own medicinal purposes, it is your duty to give him the benefit of the doubt and find him not guilty.”

To our minds a charge couched in this language states the opposite of what was apparently intended. The jury may have a reasonable doubt as to whether the liquor is being transported for medicinal purposes, but this -would not authorize an acquittal. They may not only doubt that such was the purpose of the accused, but may doubt it so seriously as not to believe it at all; but this would furnish no ground for an instruction that in such case an acquittal should follow.

For the error of the charge on the burden of proof as above mentioned, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellant has filed a motion for rehearing complaining of that part of our opinion in which we held that it was not necessary to negative the exceptions in an indictment. The motion presents substantially the same arguments and authorities that are set out in the motion for rehearing in cause No. 8379, Sproules v. State, 262 S. W. 757, opinion this day handed down, and for the reasons therein set forth the motion will be overruled. 
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