Berlew v. State

LATTIMORE, Judge. Appellant was convicted in the District Court of McLennan County for illegal sale of intoxicating liquor, and his punishment assessed at confinement for two years in the penitentiary. The indictment under which the prosecution was had, reads as follows : "In the Name and by the Authority of the State op Texas : "The Grand Jury of the County of McLennan and State of Texas, duly selected, Organized and empaneled by the Judge of the 54th Judicial District of Texas, holding session of the District Court in and for said County, under their oaths in open Court present that heretofore, on or about the 7th day of September, A. D. 1919 and subsequent to and after the adoption of an amendment to the constitution of the State of Texas, and after the proclamation made by the Governor therof, prohibiting the manufacture and sale and barter and exchange in the State of Texas of spirituous and vinous and malt liquors and medicated bitters capable of producing intoxication and any other intoxicant whatever, except for medicinal and mechanical and scientific and sacramental purposes or for any of said purposes, and providing further that the sale of spirituous " and vinous and malt liquors and medicated bitters capable of producing- intoxication and any other intoxicant whatever for medicinal purposes shall be made only in cases of actual sickness and then only upon the prescription of a regular practicing physician, subject to the regulations applicable to sales under prescriptions in prohibited territory by virtue of Article 598, Chapter 7, Title 11, of the Penal Code of the State of Texas, one S. S. Berlew in the County of McLennan and State of *244 Texas, and before the presentment hereof did thensand there unlawfully sell to Grid Walker in violation of said constitutional amendment, spirituous and vinous and malt liquors and medicated bitters capable of producing intoxication, which said sale was not made by the said S. S. Berlew for mechanical and scientific and sacramental purposes, and said sale was not made for any of said purposes, and said sale was not made for medicinal purposes in a case of actual sickness upon the prescription of a regular practicing physician in conformity with the regulations applicable to sales under prescriptions in prohibited territory by virtue of Article 598, Chapter 7, Title 11 of the Penal Code of the State of Texas, against the peace and dignity of the State.” An examination of the constitutional amendment, which was adopted by the people of this State on May 24th, 1919, discloses that by its express terms, said amendment was made self-operative, and that by its provisions, the manufacture, sale, barter, or exchange of the intoxicants therein described, was forbidden, except for certain purposes, and that it is provided in said amendment that until such time as the Legislature may provide other and different penalties, that any person who shall violate the provisions of said amendment, shall be prosecuted as provided by law, as in cases of felony, and upon conviction, shall be punished by imprisonment in the penitentiary for not less than one nor more than five years. Appellant made a motion to quash said indictment upon the grounds, briefly stated, that said constitutional amendment was an attempt at direct legislation by the people, and that this is forbidden by the terms of our constitutional provision to the effect that all legislative power is vested in the Legislature and that the submission of an amendment, such as the one in question, to the people, was an attempt at a delegation to the people of this legislative power, and was an attempt to have a statute enacted by direct vote of the people, and in violation of the terms of Section 1, Article 3, of our Constitution. We are referred by appellant to the cases of State v. Swisher, 17 Texas, 448; Werner v. City of Galveston, 72 Texas, 27; Ex parte Mitchell, 177 S. W. Rep., 953; Lyle v. State, 80, Texas Crim. Rep. 606, 193 S. W. Rep., 680, and others along the same line, as being authorities supporting the contention contained in appellant’s motion to quash. We have examined said authorities, which are more or less familiar, and regret that we are unable to see any application of the doctrine therein announced, to the instant question. In those cases, the rule is affirmed that, in the absence of a constitutional command, a law may not be enacted by the Legislature which, by its terms, grants to the people of any prescribed part of this State the right to declare by a majority of the votes cast at an election that such law shall or shall not become effective within the limits of said *245 territory. None of said decisions had in mind, or discussed the power of the Legislature to refer to the people for their adoption, amendments to their constitution, nor do- they discuss the condition resulting from the adoption of such amendment. It seems clear to us, that proceeding in the prescribed method for submitting a constitutional amendment, the Legislature might submit, and the people might adopt an amendment changing Section 1, Article 3, of the Constitution, or any other article thereof. We are referred to no authority, and know of no one which holds that an amendment duly submitted and adopted is not effective as a part of the Constitution, because by some construction it may be claimed to be in contravention of some other clause of said constitution that was existent before the adoption of such amendment. This is a Republican form of government; all political power is inherent in the people; they make constitutions, and provide ways in which the same may be changed and unmade. The question that a proposed change is not in conformity with some existing declaration of the instrument, should be addressed to the electors. When they have adopted an amendment submitted in entire accord with the method they have provided therefor, we are without power to hold that that which is thus made a new part of the constitution, is unconstitutional. The power of the people to so amend their constitutions as to engraft upon them the principle of the referendum, cannot be successfully denied. The provision in said amendment which substantially protects against violations of the terms thereof until such time as the Legislature can enact laws, has illustrious precedent. It was provided by Section 48, of Article 16, of the Constitution of 1876, that all laws, and parts of laws, in force in Texas, not repugnant to either the National or State Constitutions, should continue and remain in force as the laws of Texas until they expired of their own limitation, or were amended or repealed by the Legislature. Section 17, of said Article 16, expressly continued all those officers in office until their successors should be qualified. Section 53, of said Article 16, also expressly continued in force all writs and processes not returned or executed when the constitution should be adopted. We think these provisions of the Constitution of 1876 were self operative —were effective, and certainly not unconstitutional. Counsel for appellant argues his motion with much logic and force, but we are unable to agree with him, and conclude that the .trial court properly overruled said motion. Appellant objected to the main charge of the court, for its failure to instruct the jury that witnesses Walker, Lewis, Wood and Burton, were accomplices; and he asked special charges to that effect, which were refused. An examination of the record discloses that not a single bill of exceptions was reserved or appears therein, and we are forced to conclude that the refusal of his special »charges *246 was acceptable to appellant, as was the refusal of the court to correct his main charge. W.e observe that it does not appear whether said special charges were presented and refused before the main charge was read to the jury. Watts v. State, 75 Texas Crim. Rep., 330, 171 S. W. Rep., 202; Burrus v. State, 76 Texas Crim. Rep., 120, 172 S. W. Rep., 981; Crossett, v. State, 74 Texas Crim. Rep., 440, 168 S. W. Rep., 548. In this condition of the record, such supposed errors cannot be considered by us. Appellant assails, in his motion for new trial the sufficiency of the evidence, but lays no stress on this question in his presentation of the case here; and an examination of the statement of facts satisfies us of the sufficiency of the evidence to support the verdict. Finding no error in the record, the judgment of the trial court will be affirmed. Affirmed.