Mealer v. State

On April 25, 1910, the county attorney of Dallas County filed an information against appellant on affidavit of Bennet charging appellant with unlawfully making a sale of intoxicating liquors to Scott on August 1, 1909, in a certain precinct in Dallas County — describing it — after an election had been held therein and the voters had voted in favor of prohibition and after the proper order declaring the result had been made, passed and entered by the Commissioners' Court of that county and the order had been properly published on the order of the county judge for the length of time required by the statute. There was no allegation in the affidavit or information when the election was held, declared carried and the proper orders made and publication had. The appellant was convicted and appealed. There are but two questions to be decided. First, the appellant made a motion to quash the complaint and information on the ground because they fail to show the date when said election was held, whether *Page 142 it was before or after the Act of the Legislature making such sale a felony. The question was also raised by a motion in arrest of judgment. The court overruled both motions and the appellant properly saved his point by proper bill of exceptions and motion for new trial. The Act making such sale a felony went into effect on July 24, 1909. The statement of the facts above show that the election could not have been held, properly declared, the advertisement made for the time required by law between July 24, 1909 and August 1, 1909, the date the sale is charged. This is very evident, because the law making it a felony went into effect July 24, 1909, and appellant is charged to have committed the offense on August 1, 1909, within eight days thereafter. Even if an election had been held any time between July 24, and August 1, prohibition could not, under the law thereunder, have been put in force in said precinct until the proper orders were made and the publication of at least four weeks, which physically could not have occurred between July 24 and August 1, 1909. Hence the offense in this case was a misdemeanor under the previous decisions of this court which seem to have been followed by the last Legislature in enacting the Revised Statutes of this State. Penal Code, 597, new revision. This is unlike the case of Head v. State, this day decided by this court. In the Head case the sale is alleged to have occurred on September 29, 1909. It will be seen that in that case the requisite length of time from July 24 to September 29, elapsed to have held, declared and properly published the prohibition election so as prima facie to make the offense a felony as we held in the Head case. The court did not err in overruling appellant's said motions in this case. The other question is to the refusal of the court to give this charge requested by appellant: "You are instructed that if the defendant was merely a hired hand of Anderson, the owner of the place where intoxicating liquor was sold S.B. Scott, if any was sold him, and did not know there was any intoxicating liquor for sale there, and did not sell S.B. Scott intoxicating liquor knowingly, then you will acquit the defendant." The appellant's contention is that this charge was correct on the question of a mistake by appellant in selling the intoxicating liquors, such mistake having been made in good faith. Our statute on the subject of mistake of fact is as follows: Article 46. No mistake of law excuses one committing an offense; but, if a person laboring under a mistake, as to a particular fact, shall do an act which would otherwise be criminal, he is guilty of no offense." "Article 47. The mistake as to fact which will excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense." These articles, show, as stated in article 47, that such mistake must *Page 143 not arise from a want of proper care on the part of the person committing the offense which is clearly omitted from the said special requested charge. Therefore, that charge did not properly present the law on the subject to the jury. This court in Lawrence v. State, 20 Texas Crim. App., 536, said: "While a court may qualify or modify an instruction which is asked so as to make it present the law as the court perceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous instruction, but may refuse it outright." Again this court in Sparks v. State, 23 Texas Crim. App., 447, in construing our statutes on the subject of giving written requested charges in misdemeanor cases, said: "This statute does not make it obligatory upon the court to prepare and give a written charge when requested to do so by the parties, but only requires the court to give or refuse such charges as are asked in writing. If charges are asked in writing the court shall give or refuse them, with or without modification. But, if the court refuses such as are asked, it is not required to supplement them by any charges of its own; it may still, if it desires, decline to give any written charge in the case. In misdemeanors, the object and policy of the law seems to be to relieve the court of the burden and necessity of giving charges, unless the parties deem it necessary that such instructions as they may prepare in writing should be given. Such as are thus prepared may or may not be given. The court should not give instructions which it does not believe to be the law, and it is not even required to modify such charges, but may refuse them absolutely." This court has always adhered to this doctrine. In Hobbs v. State, 7 Texas Crim. App., 117, the court discusses fully and gives the reasons for the doctrine. This is further made certain since the amended enactment of the Code of Criminal Procedure, article 723, new revision, article 743. There is, therefore, no reversible error presented on this ground. It is unnecessary to discuss the facts in this case. The testimony of several of the witnesses for the State showed that on the date charged they went to the place where the appellant was at work; that he was behind the bar with another man waiting upon the customers. That Scott, the party to whom the illegal sale is charged to have been made, ordered beer; that it was sold to him by the appellant; that it was then drank by him and his associates in the place where appellant was at work behind the bar; that his companions and others immediately thereafter, ordered of him beer again, which he sold to them and which they again drank in his presence. Other witnesses showed that he had been at work behind the bar at this same place for some length of time, and that various parties about that time had driven up and ordered beer and that appellant had served it to them; that this occurred very frequently about this time. It was also shown by the witnesses that lunch and meals were served *Page 144 at this same place and that soft drinks, such as lemonade, soda water, etc., were also served there during all this time. It was also shown that there were eight indictments against appellant's employer at this place for violations of this same law which was the time appellant was charged in this case, and that the appellant knew this. He testified that his employer, the party so indicted, conducted that business and not him and that he had no interest in the business and further that there was no intoxicating liquor for sale at the place that he knew of. That if there was, he knew nothing about it, and if there was any beer there he did not see it. He denied selling any intoxicating liquors or beer to Scott or anybody in his party; that he was employed by the week and that he did the cooking and preparing of chicken sandwiches, lunches, etc., that were served there; that it was no part of his duties to wait on customers behind the bar; that he may have been around there. That he knew whisky and beer when he saw it, but that if any such was sold there, it was done without his consent or knowledge; that he never had anything to do behind the bar. It is very questionable whether the testimony in the case called for a charge at all on the subject of a mistake made in good faith, but even if it did, the special charge requested by appellant did not present the law on that subject, and, as stated above, the court did not err in refusing to give it, and the refusal to give the special charge which was requested, presents no reversible error. The judgment will, therefore, be affirmed. Affirmed. ON REHEARING. March 27, 1912.