The opinion
ON SECOND MOTION FOR REHEARING
WOODLEY, Judge.
It is again insisted that under the rule stated and applied in Anderson v. State, 132 Texas Cr. Rep. 37 , 105 S.W. 2d 258 ; Baker v. State, 132 Texas Cr. Rep. 527 , 106 S.W. 2d 308 ; Rice v. State, 37 Texas Cr. Rep. 36 , 38 S.W. 801 ; and U.S. v. Cook, 21 L. Ed. 538 , the information is fatally defective in failing to negative that the barbiturate was a compound, mixture or preparation such as declared to be without the act in Sec. 4 thereof; and in failing to negative the premise that barbiturate may have been delivered by a pharmacist or practitioner under the conditions and in the manner permitted by Sec. 3a -1 and 2 of the statute.
If the exceptions and provisos are themselves descriptive of the unlawful act and if, in order to show the unlawful act, the state was under the necessity of proving that the act relied upon did not come within the exceptions or provisions then appellant’s contention must be sustained.
The authorities mentioned support the contention that the legislature is without authority to relieve the state from negativing an exception which is a necessary element of the offense, without proof of which the things forbidden by the statute in question could not be proved or the case made out.
*276 In considering the problem before us we note that the legislature has declared not only that it shall be unnecessary to negative the exemptions, exceptions, provisos and excuses contained in the act, but has placed the burden of proof thereof on the defendant charged with delivery of a barbiturate.
This section of the act makes it clear that the delivery of a barbiturate is sufficient to show a prima facie violation of the statute, and that the burden then rests on the defendant to show (1) that the barbiturate is excepted under Sec. 4; or (2) that the defendant was a person authorized by law to deliver barbiturates under Sec. 3a -1 or 2; or (3) that the delivery was to a person to whom a barbiturate might be lawfully delivered under the exceptions found in Sec. 5 of the act.
We hold that Art. 726(c) V.A.P.C. makes the delivery of a barbiturate prima facie an offense; provides a method by which barbiturates may be delivered by those qualified and authorized to do so, and provides a means whereby compounds, mixtures and preparations for external use only may be lawfully delivered, but places upon the defendant the burden of showing facts by reason of which the delivery of the barbiturate is excepted, excused or exempted under the statute.
We cannot agree that the legislature was without authority to so provide, and remain convinced that the state was not required to negative the said exceptions, provisos and exemptions in their pleadings.
Appellant’s second motion for rehearing is overruled.