The opinion
Conviction is for transporting whisky in a wet area without a permit, punishment assessed being a fine of $100.00.
The prosecution was under Art. 666-4a, Vernon's Tex. P. C., Vol. 1, p. 630, Acts 45th Leg., p. 1053, ch. 448, Sec. 4(a) which reads as follows: "It shall be unlawful for any person to manufacture, distill, brew, sell, possess for the purpose of sale, import into this State, export from the State, transport, distribute, warehouse, store, solicit, or take orders for, or for the purpose of sale, to bottle, rectify, blend, treat, fortify, mix, or process any liquor transaction out of which this prosecution grew is alleged to have occurred in Amarillo, Potter County, on or about April 30, 1943. The charging part of the information is that appellant transported whisky "in a wet area * * * without first having procured a permit to transport such liquor from the Texas Liquor Control Board, or such a permit from the Administrator of such Board, and said County was then and there a county in which the transportation of such liquor could be legally carried on under a legal permit."
The case was not tried until June 16, 1943. The 48th Legislature by Ch. 325, p. 513 had amended the statute above quoted by adding after the words "without first having procured a permit" the following: "of the class required for such privilege," but this amendment did not become effective until May 14, 1943.
A motion to quash the information was urged because it did not charge appellant with being one of those persons whom the Liquor Control Act requires to have a permit to transport liquor in wet area, and because said Act makes no provision or requirement for procuring a permit to transport liquor in wet area by a person unless they are (a) carrier, (b) a private carrier, or *Page 415
(c) a warehouse or transfer company; and nowhere is it charged in such information that appellant was within any of the classes named.
My brethren have apparently reached the conclusion that the statute in question makes it unlawful for anyone in "wet area" to transport liquor without a permit, and that all the State is required to do in order to charge such offense is to follow the language of the statute and go no further. They call attention to Art. 666-23a, subd. 1 as probably furnishing a defense to appellant under the facts claimed by her. The statute last referred to reads: "It is provided that any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal." I am not so interested in the facts of the instant case as I am a correct interpretation of the law. If my brethren have construed the law correctly then anyone who has made a perfectly legal purchase of liquor in a "wet area" must take the risk of being embarrassed by a prosecution for taking it home, and can only defeat a conviction by assuming the burden of convincing the court or jury that the liquor was for his own consumption, because under the law as construed by my brethren the State has made out its case when it shows the transportation of the liquor without a permit, although no provision is made for the issuance of any such permit. I can not agree to such a construction of the statute.
The accepted rule for determining the sufficiency of indictments or informations is very clearly stated in 23 Tex. Jur., Sec. 34, p. 635, as follows: "It is a general rule that an indictment or information drawn in the language of the statute creating and defining an offense is sufficient. * * * But where the language of the statute does not sufficiently describe the offense, such additional facts must be alleged as will adequately advise the accused of the charge against him. This is particularly true where the statute is in general terms, and a violation thereof might consist of any one of several acts or omissions." Many cases are cited under the text illustrating the exception to the general rule. See Beles v. State, 108 Tex.Crim. R., 299 S.W. 899 ; Kennedy v. State, 86 Tex. Crim. 450 , 216 S.W. 1086 . The Statute with which we are now dealing seems to present a striking illustration of the necessity of going to other provisions of the Liquor Control Act to even know what the Legislature had in mind in the wording of Art. 666-4a, Vernon's Tex. P. C. The Legislature appears to have sensed the difficulty under the very general language employed when it denounced the doing of some 19 different *Page 416
things "without a permit," and undertook to particularize in some degree at least in the amendment passed by the 48th Legislature, p. 513, by saying the permit necessary was for that class authorized to obtain a permit. This still makes it necessary to search other provisions of the statute to ascertain to whom the various kinds of permits may be issued by the Liquor Control Board. If an accused was doing something in "wet area" for which no permit was authorized or required, then it would seem to follow as night the day that the failure to have a "permit" could not be the basis of a prosecution.
The Liquor Control Board, of course, can only issue such "permits" as it has been authorized to issue by the terms of the Liquor Control Act. By reference to Art. 666-4a it will be found there are some 19 different acts denounced as offenses if done without a permit, therefore, of necessity we are forced to go to other provisions of the Liquor Control Act to ascertain what permits are authorized by such Act to be issued by the Liquor Control Board. It will be found upon investigation that many of the things mentioned in said Art. 666-4a have been subdivided. For instance, regarding transportation in "wet area" Subdivision (10) of said Art. 666-15 authorizes the issuance of Industrial Permits" to persons who "transport" alcohol for use in the manufacture of certain named tax free alcoholic commodities; Subdivision (11) of said article as amended in 1941, Acts 47th Leg., p. 471, authorizes "Carrier Permits," and defines "carriers" as meaning "water carriers, airplane lines, all steam, electric and motor power railway carriers, and common carrier motor carriers operating" under a certificate from the Railroad Commission of Texas or the Interstate Commerce Commission; Subdivision (12) of said article authorizes the issuance of "Private Carrier Permits," and defines such private carriers; Subdivision (13) of said article authorizes the issuance of "Local Cartage Permits." No transportation permits are authorized to be issued to anyone save those mentioned in the Act in question, and unless an accused comes within one of the classes to whom permits may be issued no such permit could be obtained; therefore, the necessity is obvious of alleging in the State's pleading that an accused falls within a class to whom permits might be issued, and was doing some act without having procured a permit which was obtainable under the law. The conclusion seems inescapable that a failure to allege that accused in the present case was in a class to whom transportation permits might be issued fell short of charging an offense. If Art. 666-4a stood alone as originally written or as amended, but nowhere in the Liquor Control Act could be found any authorization for the issuance of a permit to do *Page 417
any of the things mentioned in said article, then certainly it would not be contended that the doing of such things without a permit was an offense, therefore, the necessity is obvious that to allege an offense it must be averred that accused was in a class for whom a permit had been authorized, designating such class.
My brethren hold that an information which merely avers the transportation of whisky in wet area without a permit charges an offense. The unsoundness of such holding appears demonstrated by a simple illustration. It is well settled that under the guise of regulation the Legislature may not prohibit. A citizen goes into a package store in wet area where it is perfectly legal to sell and for him to buy whisky in an unbroken package, and purchases a pint of whisky. An officer sees him start out the door and inquires if he has a permit to carry the whisky away, and upon being advised that he has none the officer tells the purchaser if he starts away with the whisky he will be arrested for transporting it without a permit; and that the only way he can escape conviction is to assume the burden of proving his innocence by showing to the satisfaction of the court or jury trying him that the whisky was for his personal use. The citizen desiring to avoid the embarrassment of such prosecution leaves the whisky where it is and goes to procure a permit to move the liquor. Upon making application for such permit he is advised by the Liquor Control Board that the law clothes the Board with no authority to issue any such permit. He goes back to the package store, — what must be done with the whisky? He is not permitted to drink it on the premises, for that is unquestionably prohibited. He can't take it out of the store without the embarrassment of a prosecution. The only alternative is to sit and nurse the bottle in his lap. If the construction my brethren have given the statute is not for all practical purpose a prohibition against a legal sale in wet area rather than a regulatory measure it approaches it dangerously.
Such a construction of law as announced by my brethren appears unsound, and if undertaken to be enforced as thus construed would render the law ridiculous.
The information should be held to charge no offense, and the judgment should be reversed and the prosecution ordered dismissed under the present State pleading. So believing, I most respectfully record my dissent. For my views upon a similar question reference is made to the dissenting opinion in Anderson v. State, 172 S.W.2d 311 . *Page 418
ON MOTION FOR REHEARING.