Fitch v. State

Ordinarily, I should not take the time to prepare an opinion in this case. In view, however, of the importance of the matter and the dissenting opinion of Judge Davidson, which I have seen, and in view of my inability to agree that the indictment in the case is invalid, I have thought it advisable, if not necessary, to make a statement of my views touching the matters involved in the case.

1. The dissenting opinion of Judge Davidson is based largely, if not wholly, on the proposition that the conclusion of the court sustaining the validity of the Act in question rests largely, if not wholly, on the proposition that this conclusion is opposed to and not in harmony with the opinion of the court in the recent case of Lewis v. State. I had the honor to write the opinion of the court in the Lewis case, and whatever other merits it may have, a careful reader will be willing to confess that it evidences a careful examination of the authorities, and that it follows the decisions heretofore rendered by this court. I recognize that the opinion of Judge Davidson on this or any other question is entitled to great deference and respect. Since, however, the opinion in this case and the Lewis case were delivered on the same day, and since I wrote the opinion in the Lewis case, and have agreed and do now agree to the opinion sustaining the law in this case, I shall endeavor briefly to show not only that there is no lack of harmony between the two cases, but that the distinction between them is so broad as to leave ample room to drive a coach and four between the opinions without injury to either. There is, in my opinion, not only no lack of harmony or contradiction between the two opinions, but *Page 390

the reasoning and philosophy that sustains one sustains the other. It is not my purpose to go into the matter at length. The opinion of Judge McCord is so well reasoned and so well fortified by authority as to make it unnecessary for me to do so. That the opinion on the main question is correct seems to me to be clear in reason. Besides, it is directly supported by all the authorities in this court for almost, if not quite, a quarter of a century down to and including the recent case of Schwulst v. State, 52 Tex.Crim. Rep., in which the opinion was delivered by Judge Davidson on January 22, 1908, and concurred in by both Judge Brooks and myself. If I am correct in this conclusion, I stand, therefore, today where I have always stood, and where as I understand this court has always stood in upholding the law, and, therefore, take this opportunity to go on record as assuming my full share of the responsibility for the opinion of the court upholding the validity of this law both in word and in spirit.

That it is within the power of the Legislature to provide ample remedies for evils and abuses growing out of the sale of intoxicating liquors in local option precincts, beyond and aside from the punishment assessed for such sales, is no longer an open question in this court. It was so held in the case of Schwulst v. State, supra, where Judge Davidson held that though the law imposed a higher penalty for those operating a blind tiger than for an ordinary sale, this did not render the statute invalid. If that was the law then, it is certainly the law now. Under the local option law each sale is a different offense, and the person selling may be punished as often as he makes different and several sales. Notwithstanding this statute, we have upheld the validity of a statute which imposed a tax upon liquor dealers in local option precincts. This was first ruled in the case of Snearley v. State, 40 Tex.Crim. Rep., in which Judge Davidson dissented, but this has since become the settled rule of this court, and is reasserted in the case of Cunningham v. State, 52 Tex.Crim. Rep., 108 S.W. Rep., 678 , and in the more recent case of Snead v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 983 , where all the authorities are carefully reviewed, and the proposition is thoroughly well settled without dissent or difference between the members of this court. The object of this statute was clearly in aid of the enforcement of the local option law, and for the further protection of society, and to rid the commonwealth of a set of lawbreakers who are doing more to outrage decency and corrupt the youth of our land than any element in it. Such offender was usually known under the guise of keeper of a frosty joint or a traveling bootlegger. He could, of course, be punished for individual sales, but there was an evil back of and beyond the evil wrought in the mere act and fact of the sale. He was an unfair competitor of the man engaged in the sale of liquor under the restraints and safeguards of law. He was doing business in defiance of law. The youth received no protection at his hands as the law provides in case of the saloon keeper. He gave no bond to keep an orderly *Page 391

house. He might as he did ply his business in all hours of the day. His place became a refuge for the depraved, a breeding ground of crime, a plague spot, the refuge and shelter of indiscriminate outlawry, and in every way worse and more destructive than the "earthquake's shock or the ocean's storm." It was this man as it was a man of like mold in the blind tiger case that the law sought to reach. It sought not so much to punish him for the sale as to prevent the sale, break up his place of business and drive him out of business. It sought not so much to punish him as to protect society by the imposition of the felony punishment for his continued existence. The record shows that this law was voted for and approved quite generally by members both of the House and Senate who felt and thought that a wise public policy should not prevent in communities desiring it, the sale of liquor under the sanction and safeguards of the law. Why should it be deemed a thing incredible among us that for the protection both of those who think liquor ought not to be sold at all, and of those who think it may wisely be sold under proper safeguards, that the mandate of the law should be issued against the man who is the common enemy of both. The decision in the Lewis case is rested on the ground, first, that the Legislature has no power to attach a different penalty for the sale of intoxicating liquors where such sale is prohibited prior to the passage of the Act, and, further, that such was not the legislative intent. In this case the man is not punished for making the sales. He is punished for engaging in the business, which implies an open and flagrant defiance of law and which embraces evils not included in the mere fact and act of a single sale. The provision in reference to two sales is as a matter of evidence that he is engaged in the business. If he were punished for the sales as such he must be punished for each sale and in two separate cases. It is easily conceivable that one might make a dozen sales in three years at widely separated times and under different conditions, and yet not be in the business. Two sales do not fix the fact that he is engaged in the business, but with a view of throwing some limitation around the law and as a matter of proof, it is required that at least two sales shall be shown. On principle this identical question was before us in the case of Joliff v. State, 53 Tex.Crim. Rep.. The Act there construed fixed a heavy penalty against anyone engaging in the sale of intoxicating liquors who had not obtained a license so to do. It was, of course, true in the Joliff case that he would have been responsible for each sale, and could have been prosecuted for such sales under the law, but while amenable to this law, we upheld the law in the Joliff case as we have done repeatedly since that day, and have held on the same broad principle of right and reason that the lawbreaker who, in defiance of law, conducted a business under such conditions as to become a public stench in the nostrils of all good people might be proceeded against under the law fixing penalties which would deter him from engaging in the business. If, therefore, it was lawful to fix a different *Page 392

penalty for a man engaged in the sale of intoxicating liquors in prohibition territory, on what principle of law or reason could it be held that the Legislature could not, as they have done, make it a penitentiary offense for one to engage in such business whether within the shelter of a house or as a bootlegger at night? There is no reason, as far as I can see. In the Joliff case, he could have been prosecuted for every sale he made, and yet this was held to be no answer when the State proceeded against him for keeping a disorderly house, and why? For the reason that when he set up a shop in defiance of law and was conducting a business without the safeguards and without that protection the lawmakers have thrown around the business, it was easily seen be would attract to himself every undesirable element of society, furnish them an abiding place, that it would promote gambling, disorders, outbreaks, drunkenness, vice, theft, burglary, murder, and so with a view of aiding in the enforcement of the local option law, not so much to punish him for the sale as to make the sale impossible and the business impossible, the lawmakers in this case have fixed a penalty that says to the man who seeks this as a business, as a trade, as a profession, as a livelihood, that when he engages in it, that he does so with knowledge of the fact that he may be sent to the penitentiary. There is, therefore, no lack of harmony between the opinion at which we arrived in this case and the Lewis case. I would be the last man to uphold a law which might appeal to me as being intrinsically meritorious if in reason and under the law it could not be and ought not to be sustained. I said in the Lewis case, and I say now, that it is not so much our office and purpose to declare what the law ought to be as it is to declare what the law is, but I can never get my consent to be tied down by any artificial or superficial reasons that are supposed to be wiser than the truth, but with the law I take my stand now and always. (2.) I think the court was clearly wrong in the conclusion at which Judge McCord ultimately arrived in holding the indictment in this case defective, and concedes more than ought to be conceded. I think in reason that this concession of his lends some aid to and tends to support Judge Davidson's position that there is a lack of harmony between this case and the Lewis case. If I am right in my opinion on the other question, then I am right on the proposition that it is not essential to set out in detail the dates of the several sales and the names of the several purchasers. This provision with reference to two sales in three years is not a descriptive part of the offense. It is a different section, and, therefore, is not required to be recognized or treated in the indictment at all. We held in the recent case of Newman v. State, that it was not essential to negative exceptions in a statute which were not descriptive of the offense. This part of the statute requiring two sales to be shown is simply a matter of evidence in the same sense that the provision of the law touching the possession of internal revenue license raises the presumption that the person having same was engaged in the business of selling intoxicating *Page 393

liquors. Nobody would contend that the court would be authorized as a matter of law to instruct the jury that when two sales were shown, that this was legal and conclusive evidence that the person was engaged in the business. The mistake of my brethren from my point of view on this question is in overlooking the fact that in these prosecutions the defendant is not charged with making the sales, but with conducting a business in violation of law. The decision on the sufficiency of the indictment ought not to stand because it throws unnecessary burdens on the State. I, therefore, note my disagreement and dissent from the proposition that the indictment in the case is invalid, and affirm my entire concurrence in the majority opinion which holds the law valid and constitutional.